Taking the Pulse: The One-Year Anniversary of China's Open Government Information Measures

By
Tod Kaiser and Rongkun Liu

August 2009

The first of May 2009 marked the one-year anniversary of the State Council's promulgation of China's first Open Government Information regulations (OGI). Hailed as a milestone in furthering government transparency, the State Council's prioritization of OGI potentially expands China's nascent legal framework by helping to institutionalize a legitimate channel for citizens to request information from the government. Traditionally, the Chinese government agencies have withheld information from the public, for legally all information was deemed a state secret unless otherwise specified. In a political culture in which disclosure is the exception the passing of OGI measures marks a potential turning point in government and civil society relations, although the process of empowering citizens to demand information will take time.

The State Council's top-down declaration for transparency mandates that all government agencies create their own implementing measures and the first agency to do so was the Ministry of Environmental Protection, which issued Measures for Open Environmental Information (for Trial Implementation) (OEI) on 1 May 2009. These measures clarified that MEP and its sub-national environmental protection bureaus are in charge of granting access to environmental information, such as government laws, regulations, standards, statistics, environment quality status information, and lists of China's most polluting businesses. [1] MEP's progressiveness on issuing OEI measures is not surprising, for the environmental sphere has been one of the most progressive in China—both in terms of policy experimentation and activism. [2] Moreover, these measures potentially serve to help empower environmental agencies.

ONE YEAR LATER
The creation of OGI measures represents the Chinese government's attempt to develop a nationalized version of already existing local-level OGI regulations. [3] Since 2002, over 30 provinces and municipalities have issued their own OGI regulations. [4] Two of the most prominent and extensive examples of local OGI regulations are those promulgated the cities of Guangzhou and Shanghai. [5] Although only a year has passed since national OEI measures were passed, this brief attempts to examine the extent to which environmental information is being disclosed by both government and businesses, and whether NGOs, citizens and lawyers are employing the regulations to improve environmental stewardship.

Slow and Inconsistent Government Response
The government's response to the new OGI regulations has produced mixed results, and present figures suggest that consistent implementation is lacking. Joan Hu, a staff attorney and open information specialist with the Natural Resources Defense Council (NRDC) maintains that governments have yet to deliver on some of their OGI obligations. [6] For example, few government agencies at any level have complied with the OGI requirements to publish information disclosure reports every year by March 31. Figures in The Prosecutor Daily show as of midnight on 31 March 2009, 9 of the State Council's 27 ministries, 13 of its 16 directly subordinate organizations, 5 of its 6 administrative agencies, 11 of its 14 directly subordinate institutions, and 15 of 19 national administrations have yet to release their annual OGI report on schedule. [7] The State Council's 29 discussion and coordination bodies, as well as 9 of 31 provincial governments also have yet to do so. [8] These results indicate that the regulations still have a long way to go towards consistent nationwide implementation. In notable contrast, MEP was one of the 18 central agencies that did publish its report on time.

Ministry of Environmental Protection's First OEI Report
According to the first annual OEI report, in the first year there were 68 applications requesting environmental information from MEP, all of which were listed as fully addressed. [9] However, MEP's report neither explained the circumstances nor gave reasoning for any decision made on each application. It also remains ambiguous as to how exactly MEP "addressed" the request since no information in the report describes whether or not information was disclosed. [10] Thus, while there does appear to be interest in obtaining information, whether citizens were satisfied with the information they received is unknown.

Variable Disclosure at Provincial and Local Levels
There has been considerable variation in terms of OEI implementation at the provincial and local levels. Overall, the amount of information disclosed in response to citizens' requests using OGI appears to have been quite low. The main trend in government transparency in the environmental sphere has been more proactive disclosure of information rather than from OGI requests. For example, the city of Hangzhou in Zhejiang Province[11] and the province of Qinghai[12] released a list of companies polluting and violating relevant environmental laws. In Hunan Province, the city of Zhuzhou initiated Corporate Open Day, which requires enterprises to open production process, operation status, and environment related information to the public once every month. [13]

Not every local government is being proactive in releasing pollution information on companies. For example, in April 2009, controversy erupted between journalists and Heilongjiang Environmental Protection Bureau (EPB) officials during a conference on enforcement and environmental emergency management. [14] At the meeting, two journalists attempted to photograph internal documents listing pollution violators before being stopped by a government official. Though the internal documents contained information that, according to OEI, could be legally disclosed, government officials denied the journalists further access to the information on grounds that the information was "confidential," and that the information the EPB already disclosed was sufficient for the media. As a clear rebuke from China's central government's news agency, on April 21, Xinhua News Agency published an article criticizing the Heilongjiang officials, underscoring how information on illegal discharge of pollutants is no longer confidential information and disclosure is needed in order for citizens and the news media to be effective watchdogs on polluters. [15]

For Yan Yiming, a Shanghai-based lawyer, OEI is still not living up to its fullest potential. Since the fourth of May 2008, he has been requesting environmental information from the environmental authorities in provinces such as Henan, Anhui and Jiangsu. [16] While his efforts to test the transparency requirements have yielded some information, he has found the request procedures quite tiresome and he often has to seek alternate channels to access environmental information. He was quoted in chinadialogue as saying, "The procedures they [local governments] provide for obtaining information are difficult and complex: it's as if they don't really want to tell you anything." [17]

Nongovernmental Organizations
In contrast to local governments, there are signs that nongovernmental organizations (NGOs) are responding proactively to the regulations. According to Joan Hu, ever since the regulations were drafted in 2007, NGOs such as NRDC, the China Environmental Culture Promotion Association, Global Village Beijing, and the Center for Legal Assistance to Pollution Victims have created training sessions investigating the new regulations and how citizens can use them effectively. [18] These actions represent a positive step towards expanding public awareness regarding the new regulations. Other than active efforts to increase awareness and understanding, NGOs are notably already attempting to use the OEI regulations to obtain information useful for activism to pressure local factories. One example involves Greenpeace China and the BASF Corporation.

Greenpeace claimed in its "Investigation on Enterprise Pollutant Information Disclosure" that the BASF Corporation adopted double standards regarding environmental information disclosure by not being as transparent in disclosing information in China as it does in other countries. [19] However, BASF insisted that its practices for information disclosure were compliant with its international standards and rejected Greenpeace's request for environmental information disclosure concerning one of its auxiliary companies in China. [20] In response, Greenpeace submitted an application to MEP seeking the disclosure of BASF's emissions data, only to be turned down because BASF informed MEP that this information as a "commercial secret." [21] By labeling information a commercial secret, BASF was taking advantage of the exceptions to information disclosure within OEI, specifically that "environmental protection departments may not disclose government environmental information that involves state secrets, commercial secrets or individual privacy." [22]

Notably, one Chinese NGO—the Institute for Public and Environmental Affairs—has been taking advantage of publicly available information on water pollution emissions to create an online database with information on companies that are violating water pollution regulations. [23] This website notably began operation several years before the OEI measures were passed and many international companies have used the website to validate that their suppliers are in compliance with Chinese water pollution control regulations. For companies to clear their name on the website, IPE has set up an auditing initiative that includes local NGO or community participation in audits to check compliance. This NGO's innovative activities to push transparency using existing information published by government agencies underscores the value continued information disclosure could have on empowering civil society watchdog activities. [24]

Leery Businesses
Overall, it seems that many domestic enterprises in China are hesitant to comply with the new regulations. While some enterprises, such as Esquel Group, have been disclosing their pollution emissions data, such information has been disclosed on the company's initiative rather than requested. [25] Overall, few companies in China publish their corporate environmental information. [26]

Since June 2008, Ma Jun's Institute of Public and Environmental Affairs has led a group of 10 international and domestic environmental NGOs in asking to publicize, in accordance with OEI, detailed information on pollutant emissions from 30 polluting manufactories in China. [27] However, only a few enterprises have actually disclosed their environmental information, with the vast majority opting to stay silent. In cases where information disclosure does occur, companies will publicly display their information on television in the middle of the night; a strategy chinadialogue contributor Yan Yiming believes defeats the purpose of publicizing information, especially if information fails to reach the attention of the public. [28]

CHALLENGES TOWARDS IMPLEMENTATION
Looking over the examples indicating how different sectors in China have responded towards the new OEI regulations, there clearly are obstacles to implementation. Though the central government is committed to these new regulations, its inability to enforce them at the local level remains weak due to a number of fundamental institutional challenges.

Decentralized Bureaucracy
Central to the success of China's economic reforms was a massive decentralization of economic and administrative power, which has meant Beijing's has a limited ability to control local governments. In the environmental sphere while MEP passes regulations for local EPBs to follow, it is the local governments that control the finances and personnel appointments in the EPBs. Local government officials, who see delivering economic growth as a way to legitimate their promotions to higher political ranks, have an incentive not to enforce legislation that could disclose how the local enterprise that has been bringing in revenue is well exceeding the standards for pollution emissions. As long as China's promotion system is solely based on economic growth, any government mandate to curb pollution will remain secondary, and any environmental target will not be fully enforced. [29]

Local EPBs have been notoriously weak and understaffed, but in order to increase MEP's reach into the provinces, in 2006 the central leadership authorized the creation of five regional offices. [30] To date, these offices have not yet been given sufficient staff or power to challenge the authority of provincial governments. [31] Local officials in China are notorious for overlooking polluting enterprises that provide considerable resources for the government and like pollution control legislation, OEI regulations are likely viewed as a threat to the economic growth of government-owned factories. Few provinces have passed their own implementation legislation for the OEI regulations, which means local agencies have been generally free to interpret the regulations as they see fit. As Wang Qingjun, a Chinese environmental law scholar at the Vermont Law School, noted that institutional obstacles hinder adequate enforcement of central government mandates and local agencies are unresponsive to even environmental emergencies. [32]

Lack of Capacity
In spite of the central government's desire to implement the regulations consistently, enforcement also may be lacking due to capacity issues. A good way to evaluate China's MEP is to draw comparisons with the U.S. Environmental Protection Agency (U.S. EPA). In a country of around 300 million people, the U.S. EPA has more than 17,000 employees, not including outside contractors. [33] China, a country with four times the population and significantly more pollution per capita, has only about 300 employees at MEP in Beijing and about 30 people in each of the five regional inspection offices. [34] Including affiliated agencies and institutes, the total number of personnel is perhaps 2,600. [35] Therefore, the ministry remains weak in terms of staff. Other areas that contribute to the problem of insufficient capacity include: inconsistent data collecting, [36] lack of funding, and lack of technology. [37] For example, it is estimated that full implementation of the OEI regulations will require new technology and communication tools to make information easily accessible, technology which China presently does not have on hand.

Legal Challenges
In cases where information was not disclosed, a clear pattern is emerging: information disclosure for both enterprises and government was exempt on grounds of confidentiality.

Confidentiality: The Rule of Exception
Article 14 of OGI (Article 12 in OEI) states that "administrative agencies may not disclose government information that involves state secrets, commercial secrets or individual privacy." [38] This is in compliance with the 1989 State Secrecy Law, in which those caught disseminating state secrets would be punished. [39] These three exceptions are similar to other freedom of information acts found throughout the world, complete with well-established practices on how to interpret these exceptions. [40] However, in addition to the established three exceptions, OGI goes a step further with additional restrictions in Article 8.

Article 8 of OGI says that "government information disclosed by administrative agencies may not endanger state security, public security, economic security, and social stability." [41] Alex Wang of NRDC states that on top of the traditional three exceptions, these four are worrisome in the sense that they are broad and present ill-defined grounds for refusing to disclose information. [42] For example, can information that displays poor environmental performance of a business be withheld on the grounds of threatening "social stability," with the rationale being that the public will seek redress or file complaints? [43] Similarly, could "economic security" be justification for not disclosing information, especially if local officials believe the information disclosed would be detrimental to attracting further industrial investment? [44] Therefore, the injection of Article 8 essentially expands upon already broad reasons for preventing information disclosure, giving local officials and businesses more options for evading opening up their books.

The Role of the Courts
The exceptions provided for by Articles 14 and 8 bestowed the already powerful local government officials and businesses with considerable discretion to determine what information can or cannot be disclosed. Lack of specific and detailed criteria on confidentiality gives officials and businesses legal loopholes to disregard disclosure requests by the public, such as the BASF and Heilongjiang EPB examples cited above. Therefore, conditions like "state secrets" or "commercial secrets" need to be defined more clearly. [45] Alex Wang believes China's Supreme Court (SPC) can aid in clarification through sound judicial interpretation to not only clarify exceptions, but also in determining who (businesses or government) is obligated to bear the burden of disclosing information. [46] As Alex Wang believes,

"The SPC has a critically important task on its hands right now. A bad judicial interpretation could stop China's nascent move toward open government information in its tracks. An interpretation that lives up to the purposes of open government information, and clarifies the principle of "disclosure as the rule, non-disclosure as the exception," would do a tremendous service to good governance in China. [47]"

However, Jamie Horsley of Yale Law School says that China's court system does not have the power to interpret law, but only to apply it. [48] Given that the courts are subordinate to the National People's Congress Standing Committee and the Communist Party, when cases are unclear, novel or politically sensitive, deference is often given to political leaders to make a decision. Ultimately, it is projected that both OGI and OEI will continue to face hurdles within the court system.

STILL TOO EARLY TO TELL
Jamie Horsley astutely noted that the U.S. Freedom of Information Act took about 10 years to really become fully institutionalized. Obstacles facing the U.S. FOIA included a twofold challenge: the existing lack of capacity and willingness of the government to comply and the initial lack of understanding of the public and NGOs as to what to do with this right of access to information. [49] In light of the U.S. difficulties in institutionalizing FOIA it is not surprising that after only one year China's OGI/OEI have not yet changed the political culture of secrecy. Intriguingly, while few other ministries have passed OGI regulations, Chinese citizens across the country have been making requests to government agencies across a large range of issues.

These demands are perhaps not simply due to the OGI regulations, but also to the growing amount of information that citizens can access on the Internet and from various news media. [50] While the government may still be clinging to keeping information secret, citizens are beginning to expect that they are kept informed on government and business actions that impact them. One example of this growing expectation of a right to information and to influence decision-making in the environmental sphere is the growing number of protests (sometimes violent) by Chinese citizens who find local governments unresponsive to their complaints and demands for information on factories that pollute their communities, threatening their health and livelihoods. [51]

The State Council's intention of establishing OGI and OEI was to increase transparency, accountability, and equitable governance. Wen Bo, an environmental activist in China, agrees that the regulations have not changed much of the political dynamics in the country, but he is hopeful that they will change. [52] Though it is still too early to know whether OGI and OEI will do well consistently nationwide, recent evidence suggests that civil society is beginning to take interest and demonstrate assertiveness in making requests for information, and that those requests are being positively answered in some respect. Wang Jing, a professor at Peking University, notes that "there will be greater space for open information to grow and mature with experiences obtained during the first year that OGI regulations took effect." [53] It is through this pragmatic lens that these still young regulations should be evaluated. Ultimately, until the major challenges towards implementation of OGI and OEI are addressed, inconsistencies in nationwide enforcement will remain.

Tod Kaiser is a recent graduate of the University of California, Berkeley and was a spring 2009 CEF Intern. He can be contacted at todkaiser@gmail.com. Rongkun Liu is a master's degree candidate at American University and also was a spring 2009 CEF Intern. He can be reached at cotineliu@gmail.com.

The authors would like to thank Linden Ellis of the China Environment Forum, Jamie Horsley of Yale Law School, and Wang Qingjun of Vermont Law School for their insights into this research brief. Any errors, however, are the responsibility of the authors.

[1]MEP. (2007). "Measures on Open Environmental Information (for Trial Implementation)." [Online].Available.
[2]Interview with Jennifer Turner, Director China Environment Forum, April 8, 2009.
[3]Horsley, Jamie. (2007 May 9). "China Adopts First Nationwide Open Government Information Regulations." [Online]. Available.
[4]Ibid.
[5]For a good introduction into the history of open government information access in China, please read Jamie Horsley's essay titled "Toward a More Open China?" [Online]. Available.
[6]Green.sohu.com, Chinadialoge and NRDC. (2009). "Open Environmental Information Forum." (In Chinese). [Online]. Available.
[7]Zhi, Yan. (2009 April 8). People's Daily. "Open Government Information: How many governmental departments have not handed in their ‘paper' yet?" (In Chinese). [Online]. Available.
[8] Ibid.
[9] MEP. (2009). "Annual Report on Open Governmental Information of MEP." (In Chinese). [Online]. Available.
[10]Based on an interview with Anna Brettell. April 18, 2009.
[11] Zhao, Hongyan. (2008 June 4). Qianjiang Evening News. "Hangzhou EPB Exposed 36 Companies that Illegally Discharged Pollution." (In Chinese). [Online]. Available.
[12]Wan, Majia and Guan Yuling. (2008 June 4). Qinghai News. "Qinghai EPB Exposed a List of Companies and Projects Polluting and Violating Relevant Environmental Laws." (In Chinese). [Online]. Available.
[13] Li, Wenfeng. (2008 June 6). Hunan Daily. "The City of Zhuzhou Launched Corporate Open Day." (In Chinese). [Online]. Available.
[14]Zhang, Michael. (2009 April 29). "Chinese journalists outraged as Heilongjiang EPB deems pollution figures confidential." [Online]. Available.
[15] Cheng, Zilong. (2009 April 21). Xinhua News Agency. "Journalists stormed out of a conference when Heilongjiang officials refused to expose polluting enterprises." (In Chinese). [Online]. Available.
[16]Chinadialogue.com. (2009 May 18). "One year of open information." [Online]. Available.
[17] Ibid.
[18]Chinadialogue.com. (2009 May 18). "One year of open information." (In Chinese). [Online]. Available.
[19] Hu, Joan. (2009 May 4). "One Year of Openness: Greenlaw and the First Anniversary of China's Open Information Regulations." [Online]. Available.
[20] Greenpeace. (2008 July 8). "Take Action To Stop BASFs Double Standards in China." [OnlineAvailable.
[21] Hu, Joan. (2009 May 4). "One Year of Openness: Greenlaw and the First Anniversary of China's Open Information Regulations." [Online]. Available.
[22]MEP. (2007). "Measures on Open Environmental Information (for Trial Implementation)." Article 12. [Online]. Available.
[23]Notably, IPE gathers its website's data from a vast number government websites and print publications.
[24] Boyle and Chen. (2008-09). "A Wake-Up Call to Polluting Companies." China Environment Series, Issue 10, pg. 157. [OnlineAvailable.
[25]Ma, Jun. (2008 May 01). "Your right to know: A historic moment." [OnlineAvailable.
[26] Qie, Jianrong. (2009 May 7). "Local Environmental Protection Bureaus demonstrate lackluster enforcement." (In Chinese). [Online]. Available.
[27] Hu, Joan. (2009 May 4). "One Year of Openness: Greenlaw and the First Anniversary of China's Open Information Regulations." [Online]. Available.
[28] Chinadialogue.com. (2009 May 18). "One year of open information." [Online]. Available.
[29] Green.sohu.com, Chinadialoge, NRDC. ( 2009). "Open Environmental Information Forum." (In Chinese). [Online]. Available.
[30] He, Gang. (2008). "China's New Ministry of Environmental Protection Begins to Bark, but Still Lacks in Bite." [Online]. Available.
[31] Ibid.
[32] Personal interview with Wang Qingjun on 14, April, 2009.
[33] EPA. "About EPA." [Online]. Available.
[34] He, Gang. (2008). "China's New Ministry of Environmental Protection Begins to Bark, but Still Lacks in Bite." [Online]. Available.
[35]Ibid.
[36]For a good introduction into this topic, please see Steven Andrew's article titled "Seeing Through the Smog: Understanding the Limits of Chinese Air Pollution Reporting" in China Environment Series 10. [Online]. Available.
[37]He, Gang. (2008). "China's New Ministry of Environmental Protection Begins to Bark, but Still Lacks in Bite." [Online]. Available.
[38] The State Council of PRC. (2007). "Regulations of the People's Republic of China on Open Government Information." [Online]. Available.
[39] National People's Congress of PRC. (1989). "Law of the People's Republic of China on Guarding State Secrets." (In Chinese). [Online]. Available.
[40] Wang, Alex. (2009 April 30). "China's Supreme People's Court to Release Judicial Interpretations on Open Government Information This Year." [Online]. Available.
[41]The State Council of PRC. (2007). "Regulations of the People's Republic of China on Open Government Information." [Online]. Available.
[42] Wang, Alex. (2009 April 30). "China's Supreme People's Court to Release Judicial Interpretations on Open Government Information This Year." [Online]. Available.
[43] Ibid.
[44] Ibid.
[45] Personal interview with Wang Qingjun, April 14, 2009.
[46] Wang, Alex. (2009 April 30). "China's Supreme People's Court to Release Judicial Interpretations on Open Government Information This Year." (Online). Available.
[47]Ibid.
[48] Horsley, Jamie. (2007 May 9). "China Adopts First Nationwide Open Government Information Regulations." [Online]. Available.
[49] Based on an interview with Jamie Horsley. April 8, 2009.
[50] Interview with Jennifer Turner, April 8, 2009.
[51] Ma Tianjie. (2008-09). "Environmental Mass Protests in China." China Environment Series, Issue 10, pgs. 33-49. [Online]. Available.
[52]Personal Interview with Wen Bo on April 10, 2009.
[53]Green.sohu.com, Chinadialoge, NRDC. ( 2009). "Open Environmental Information Forum." (In Chinese). [Online]. Available.
 

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