Caixin
May 01, 2017 05:58 PM
POLITICS & LAW

Local Governments Defy Toothless Disclosure Provision

(Beijing) — When an environmental group last year asked work safety authorities for information about mine waste sites in Longnan, Gansu province, the response was swift.

The environmentalists were quickly told that publicizing the information they sought would serve no purpose, said Kong Lingyu, who made the request on behalf of the Chongqing Liangjiang Voluntary Service Center, which she works for.

Longnan Work Safety Supervision Bureau officials told the group that it could appeal to higher authorities in accordance with the central government’s 2007 Provision on Disclosure of Government Information.

But the environmentalists “chose not to go ahead because we felt it wouldn’t lead anywhere,” she said.

Since the State Council-approved provision took effect in May 2008, some local governments in China have adjusted disclosure policies and opened records to the public. Some governments have posted information on websites, while others opened offices and official files to the public.

But analysts cite gaps in the effectiveness of the public disclosure provision, in part because it’s not legally binding.

For example, government agencies are required to respond to information requests from the public within 15 days, but responses can be postponed for as long as 30 days.

Governments are also required to voluntarily publish annual work reports on information disclosure activities by the end of every March. The reports are supposed to include ideas for improving disclosure activities.

But the provision does not spell out what might happen to a government agency that fails to comply.

Caixin reporters found that several central government agencies affiliated with the State Council, including the ministries of national defense and commerce, had not published an annual work report on information disclosure by this year’s March 31 deadline.

And the Ministry of Supervision, which oversees government anti-corruption operations, has published only one annual information disclosure work report since 2010, covering the year 2016.

The provision stipulates that no disclosure of official information should compromise national security, business confidentiality or personal privacy.

Any government regulation can be overridden by the State Secrecy Law or the State Archives Law, said Wang Yukai, a professor at the Chinese Academy of Governance.

But on this point, the provision provides no clear guidelines, thus giving government agencies room to defend any nondisclosure decision on grounds that it’s aimed at protecting national security, privacy or a company’s intellectual property rights.

Flaunting Requirements

Chongqing Liangjiang requested statistics on mine waste sites as part of an effort to build a nationwide database on mine dumping, Kong said. The database project is aimed at keeping tabs on waste laced with lead, zinc and hazardous chemicals that could endanger the environment.

Longnan is in a mountainous area with valleys prone to flooding. Kong said the local environment is particularly vulnerable to waste materials from mining operations dumped in valleys.

Obtaining mine-waste data from Longnan officials should have been easy. That’s because in recent years, local governments in China generally have become more open about information disclosure linked to environmental issues, according to Li Enze, a Beijing Impact Law Firm lawyer who works with a team to raise public awareness about the information disclosure provision.

Since 2012, Li’s team has sent 80 information requests to local government environmental protection agencies nationwide. They received responses from each of 63 government agencies, although they’ve appealed to 32 in hopes of getting more data, he said. Seventeen environmental agencies ignored their requests.

Government agencies supervising food and drug safety, public health and forestry issues have been the least forthcoming, Li said. But team members never know beforehand how a particular agency might respond to a data request.

“You never know what excuses these agencies will use to turn down disclosure requests,” Li said.

For instance, he said, some agencies have said that any person applying for information must have their personal identification card checked by police before filing an application. The 2007 provision requires no such ID check.

Government departments in charge of land management and development are particularly hostile toward applicants seeking information about government land sales to developers and construction projects, according to Wang Youyin, head of the Beijing Shengyun Law Firm, which specializes in representing people whose property is threatened by new developments.

Local governments often protect development deals from legal challenges by refusing to publicly release urban planning blueprints, Wang said.

The disclosure provision required that local government agencies boost transparency by setting up official websites. But some agencies that followed the directive created websites with no more than basic information.

In late 2015, central government regulators shut down more than 16,000, government-run websites — or nearly 20% of all government sites — amid rising public discontent over so-called “zombie” official websites.

Officials at the Zezhou county forestry bureau in Shanxi province, for example, had failed to update several sections of its official website for seven years, according to a 2015 report by the General Office of the State Council.

Beyond website shutdowns, though, little has been done to counteract violations of the disclosure provision.

Wang and other experts have called for a national law on government information disclosure. They say such a law would serve the county well over the long term.

But opponents of a national law argue the time isn’t ripe, Wang said. They’ve instead called for revising the 2007 provision.

Any public disclosure initiative requires delicately balancing the public’s right to information against the need to safeguard national security, business intelligence and privacy, according to Wang Jingbo, a professor of governance at China University of Political Science and Law. But the public should know what kinds of information are available.

“Regulators and legislators must push for greater openness by explaining in greater detail what information is off limits to the public, regardless of whether they implement a new information disclosure law or revise the existing provision,” she said.

Contact reporter Li Rongde (rongdeli@caixin.com)

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