Freedom of Information Reform in China

Information Flow Analysis

Weibing Xiao

• Publisher: Routledge
• Year: 2013
• Print ISBN: 9780415677783
• eBook ISBN: 9781136630668
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Freedom of Information (FOI) in China is often perceived as a recent and intriguing phenomenon. This book presents a more complex and detailed understanding of the evolution of FOI in China, using information flow analysis to explore the gradual development of government receptivity to FOI in an information environment through time. The book argues that it is necessary to reassess the widely divergent origins of FOI reform in China, and asserts that social, political and legal factors should have central roles in understanding the development of FOI in China. The book uses information flow analysis to find that FOI reform in China formed part of a much longer process of increased transparency in the Chinese information environment, which gradually shifted from the acceptance of proactive disclosure to that of reactive disclosure. FOI thus has become a beneficiary of this gradual transformation of the Chinese information environment.

1 Introduction

China's Freedom of Information (FOI) phenomenon, which refers to the introduction of FOI legislation into mainland China in January 2007, presents a puzzle to the world, demanding explanation and understanding. To solve this puzzle, the following questions need to be clarified. What reasons are there for the adoption of FOI legislation in China? What corresponding legislative process has occurred in China? What type of FOI legislation has been adopted in China? What are the prospects for the implementation of China's FOI legislation? These questions have sparked the research informing this book.

‘It's FOI, but not as we know it’.¹ That was a comment made by an English academic colleague when she spoke with Professor Rick Snell about China's (FOI) reform some years ago. Friends from different countries, including Australia, Canada, New Zealand, Indonesia, Laos, Malaysia and Nigeria, also raised doubts about the feasibility and effectiveness of FOI legislation in China. They considered Chinese FOI as a ‘strange’ and ‘intriguing’ phenomenon.² This phenomenon is regarded as strange because a one-party state like China has not established any of the preconditions – such as liberal democracy, the rule of law, a developed economy, media freedom and an active civil society – normally associated with the easy adoption and implementation of FOI legislation. Non-Chinese academics are further confused by the rapid uptake of FOI legislation in China. The first national FOI legislation was adopted after only five years’ consideration from 2002 to 2007. Above all, non-Chinese observers³ find it difficult to fully understand China's FOI phenomenon, as it does not fit with the view that FOI is a liberal democratic tool used to limit government power.

Two explanatory models

Accountability deficit and globalization are two common explanatory models for the diffusion of FOI reform. The former is used to explain the wave of FOI before the 1990s in longstanding liberal democracies, such as the US, Australia, New Zealand and Canada.⁴ The latter model is generally used to explain the recent wave of FOI since the 1990s, especially the 2000s.⁵ However, both of these explanatory models have limitations when applied to China's FOI phenomenon. The origins of China's FOI legislation need to be understood within the context of improved information flow resulting from changed social, political, legal and economic conditions. This improved information flow has constituted an enabling environment for the adoption of FOI legislation. This book suggests using information flow analysis to better understand the adoption of FOI in China, and as an improved form of FOI analysis in general.

FOI adoption before the 1990s: a tool for solving accountability deficit

A dominant theme in the FOI literature, especially before 2000, presupposed two necessary conditions for the adoption of FOI legislation: the perception of growth of government and the development of liberal democracy.⁶ However, this theme has been challenged since the wave of FOI legislation began to spread across many developing countries, including China, Mexico, India, Nepal, Chile and Indonesia, after 2000.⁷

The wave of FOI legislation before the 1990s favoured the argument that FOI was an ingredient to solve a perceived accountability deficit and enhance liberal democracy.⁸ This wave involved countries with long democratic traditions.⁹ While some advanced democracies, such as the UK and Germany, postponed the adoption of FOI legislation until the early 2000s, they found it increasingly difficult to ‘justify not adopting’ this legislation,¹⁰ especially after the adoption had become a global movement. The fact that most affluent countries have introduced FOI legislation reinforced the notion that FOI was primarily a tool for addressing concerns about the erosion of government accountability due to an expansion of bureaucratic power¹¹ and domination of parliaments by the executive.¹²

FOI reform in Australia reflected this need to address an accountability deficit. The traditional methods of accountability based on parliament were inadequate after the government increased its ‘impact on the lives of individuals, groups and corporations’ over the post-war period.¹³ Missen argued that the executive had too much power, and its ‘control over information is a power in itself. Parliament must restore the balance of power and FOI will assist it’.¹⁴ In addition, question time did not assist members of parliament in acquiring the information they needed.¹⁵ It was found that ‘many members of the Parliament feel themselves unable to fulfil their proper role as elected representatives’.¹⁶ The accountability deficit and the commitment to liberal democracy were also the origins of FOI legislation in the US,¹⁷ New Zealand¹⁸ and Canada.¹⁹

FOI adoption after the 1990s: globalization

The accountability deficit was an effective explanatory model for the wave of countries adopting FOI legislation before the 1990s. However, FOI newcomers, such as Mexico (2002) and India (2005), have focused attention on a different set of explanatory measures. Most of the FOI adopters during the last two decades have very different political and social systems to FOI adopters before the 1990s. They have been prompted by various motives, such as fulfilment of democratic transition, elimination of corruption, protection of human rights and economic development.²⁰ The idea of necessary conditions for FOI reform was refuted by the diffusion of FOI legislation in newly democratic countries in the 1990s²¹ and other states in the 2000s.²²

An alternative view has been that the FOI movement is being influenced by globalization.²³ Globalization necessitates cross-national learning and emulation,²⁴ and drives the introduction of FOI legislation to align with international standards. For Blanton, this is evidence that globalization, rather than regional varieties, plays a key role in standardizing the concept of FOI legislation for ‘more value-neutral meanings’,²⁵ like economic growth. Yet some authors, such as Darch, Underwood and Snell, contest the uniformity, necessity or even desirability of this standardization of response.²⁶ Darch and Underwood state that ‘the Chinese example … possibly represents the most serious practical challenge to the idea, implicit in much of the activist literature, that freedom of information procedures are essentially nomothetic, rule-based and universal’.²⁷ A critique built upon Darch and Underwood's comment is developed in Chapter 6.

Non-government players: major contributors to FOI reform

The explanatory models of both accountability deficit and globalization demonstrate that demand side players, who are information receivers, are key contributors to FOI reform. While domestic players, such as the media and parliament, played significant roles in FOI reform in advanced democracies for addressing the deficit in government accountability, international players, such as the World Bank and the human rights organization Article 19, have played an increasing role in FOI reform during the last two decades to prompt the idea of a global move in the adoption of FOI legislation. FOI legislation was therefore generally adopted in the hostile circumstances, especially during the wave of FOI legislation before the 1990s,²⁸ which was a largely reactive response to strong pressure from demand side drivers.

Domestic non-government players: FOI adoption before the 1990s

The diffusion of FOI legislation in advanced democracies suggests that FOI reform is only likely where there is a vigorous campaign run by non-government players (the media, the opposition or public interest groups). International players were largely absent from this wave of FOI. As FOI is likely to limit the power of the executive and the bureaucracy, conventional wisdom argues that the government would be more likely to resist such reforms than introduce them. Thus, a common theme, albeit with different emphasis, occurs after the exploration of the comparative development of FOI in countries such as the US, Australia and New Zealand.²⁹ FOI reform in these liberal democracies generally has displayed the following three features: strong pressure from non-government players, adoption by main opposition parties and various degrees of resistance by the government and/or bureaucracy.³⁰ The following two points explain this.

First, the media and members of parliament were significant players on the campaign for FOI in the wave of countries adopting FOI legislation between the 1960s and the 1980s. In the US, both members of Congress and media groups played a key role in prompting the government to consider FOI law.³¹ This was also the case in Australia, where the organization Freedom of Information Legislation Campaign was established in 1976 to promote FOI legislation,³² becoming ‘the primary pressure group in the campaign which was mounted with varying degrees of intensity through to the passage of the FOI Bill 1981 by the Senate in June 1981’.³³

Furthermore, FOI reform was mainly used as an election issue, and thus the opposition became another major pressure on government to reconsider its predilection for secrecy. In Australia, Senator Evans observed that ‘FOI tends to be espoused as a concept rather more passionately by oppositions out of office than by governments sitting in office’.³⁴ At the end of the 1972 election campaign, the opposition Australian Labor Party declared that it would adopt FOI law.³⁵ To meet this election promise, the Cabinet of the first Whitlam government established an Inter-Departmental Committee in 1973 to prepare FOI legislation.³⁶ However, the introduction of FOI legislation by the Labor Party was interrupted after Whitlam's dismissal in 1975, and this incomplete task was transferred to the incoming Liberal-National Country Party, which committed to adopt FOI legislation in its 1975 election campaign.³⁷

While the FOI Bill was introduced in the Senate in 1978, it lapsed due to the 1980 federal election. About one month before the election, the Fraser government responded to the Senate Committee's Report on Freedom of Information published in 1979.³⁸ The FOI Bill was passed by the Senate in 1981 without the complete acceptance of significant recommendations by the Senate Committee.³⁹ Only the Labor Party, the opposition party at the 1982 federal election, committed to fully implementing the Senate Committee's suggestions.⁴⁰ The Australian Labor Party won the 1982 election, and delivered on its commitment rapidly, passing the first amendment to FOI legislation in October 1983.⁴¹

In New Zealand, the opposition also pressured the government to consider FOI legislation. Eagles and others argue that FOI ‘became a political issue in New Zealand in the mid-1970s’.⁴² An opposition Labor MP, Richard Prebble, introduced an FOI Bill in 1977, but ‘it lapsed after the first reading’.⁴³ In 1981, as observed by Aitken, ‘the government was under pressure from the opposition Labor Party which was intending to make freedom of information an election issue’.⁴⁴ In consequence, the National Party government immediately introduced a bill drafted by the Committee on Official Information into the House of Representatives.⁴⁵ The fact that public servants predominated in the Committee on Official Information was essential to make draft FOI legislation become friendlier toward the supply side/government, which is an information supplier.⁴⁶ This is a notable contrast to the situations in other countries, such as the US, Australia and Canada, where little attention was paid to the capacity of the supply side for FOI reform as their bureaucratic reactions were hostile or at least uninterested.⁴⁷

FOI reform in the US, Australia and Canada⁴⁸ demonstrates that the reform was, to a large extent, ‘interparty politics’⁴⁹ and required significant and active impetus from the opposition and other players on the demand side, such as the media and public interest groups. Whilst the pressure from demand side players also influenced the adoption of FOI legislation in New Zealand, the New Zealand case indicated that the receptivity of the supply side to FOI was crucial to smooth the adoption and implementation of FOI. This theme is addressed in relati...

Table of contents

• Front cover
• Freedom of Information Reform in China
• Routledge Law in Asia
• Title Page
• Copyright
• Contents
• List of tables
• Preface
• Acknowledgements
• Abbreviations
• 1 Introduction
• 2 Information flow as an analytical device for FOI research
• 3 The improved information environment as a rationale for FOI reform in China
• 4 Democratization as a rationale for FOI reform in China
• 5 Law-based administration as a rationale for FOI reform in China
• 6 Reassessment of economic growth and anti-corruption efforts as rationales for FOI reform in China
• 7 Gradual legislative process for FOI reform in China
• 8 China’s limited push model of FOI legislation
• 9 Compliance with proactive disclosure requirements in practice
• 10 Non-compliance with reactive disclosure requirements in practice
• 11 Conclusion: Information flow analysis enabling an adequate understanding of FOI reform in China
• Notes
• Bibliography
• Index