The Policy and Legal Framework for Greater Information Openness Policy Framework China's fundamental policy goal is social stability so the country can pursue rapid economic development.China has moved cautiously from a highly centralized,planned economy to a mixed economy that is replacing government mandates with more market-oriented mechanisms,while retaining a single-party political system.That system must find ways to accommodate increasingly divergent so- cial,economic,and political demands and an increasingly assertive public opinion made even more influential through the spreading use of the Internet. The Fourth Plenum of the 16th Party Central Committee in September 2004 called for Party members to improve their ability to run an increasingly complex nation,admitting in an unusually self-critical public statement that some of its own leaders lack qual- ity,capability,integrity,and close ties to the people.The document warns that the "life and death of the Party"could hang in the balance if the Party's governing style does not become more responsive to the people.2 It calls for supporting and improving open government affairs and systems to keep the people informed so they can bet- ter supervise government work.Moreover,the Party endorsed "open Party affairs,"with greater transparency so that Party members can better understand and participate in internal Party work,themes that echo and should lend further support to transparency developments on the government side. In March 2005,the Central Committee of the Communist Party and the State Council jointly issued a policy document (the "Joint Opinions")that for the first time placed the Party's support firmly behind institutionalizing the open government affairs program into a law-based system of "open government information."25 This docu- ment recited the benefits of open government and outlined the basic principles of open information:I)disclosure of all types of informa- tion concerning various administrative management and public ser- vices,except information involving state secrets,commercial secrets, or individual privacy;2)disclosure upon the government's own ini- 64 PART ONE:NATIONAL STORIES FLORINI CH02.indd 64 3/2071:21:15PM
64 part one: national stories The Policy and Legal Framework for Greater Information Openness Policy Framework China’s fundamental policy goal is social stability so the country can pursue rapid economic development. China has moved cautiously from a highly centralized, planned economy to a mixed economy that is replacing government mandates with more market-oriented mechanisms, while retaining a single-party political system. That system must find ways to accommodate increasingly divergent social, economic, and political demands and an increasingly assertive public opinion made even more influential through the spreading use of the Internet. The Fourth Plenum of the 16th Party Central Committee in September 2004 called for Party members to improve their ability to run an increasingly complex nation, admitting in an unusually self-critical public statement that some of its own leaders lack quality, capability, integrity, and close ties to the people. The document warns that the “life and death of the Party” could hang in the balance if the Party’s governing style does not become more responsive to the people.24 It calls for supporting and improving open government affairs and systems to keep the people informed so they can better supervise government work. Moreover, the Party endorsed “open Party affairs,” with greater transparency so that Party members can better understand and participate in internal Party work, themes that echo and should lend further support to transparency developments on the government side. In March 2005, the Central Committee of the Communist Party and the State Council jointly issued a policy document (the “Joint Opinions”) that for the first time placed the Party’s support firmly behind institutionalizing the open government affairs program into a law-based system of “open government information.”25 This document recited the benefits of open government and outlined the basic principles of open information: 1) disclosure of all types of information concerning various administrative management and public services, except information involving state secrets, commercial secrets, or individual privacy; 2) disclosure upon the government’s own iniFLORINI CH 02.indd 64 3/2/07 1:21:15 PM
tiative of matters that should be extensively known to and partici- pated in by the public,as well as disclosure upon request;3)timely and satisfactory explanations in the event certain information cannot be disclosed upon request;and 4)establishment of evaluation and supervisions systems to ensure that government officials carried out these principles.The Joint Opinions further called for the speedy formulation of State Council Regulations on Open Government In- formation,while encouraging the localities to develop local rules to establish a legal basis for open government affairs in the interim. It is clear that a combination of economic and political factors is driving the Party leadership toward recognition of the need to change its style of governance and to promote greater transparency.Just as financial oversight was the primary motivation for greater transpar- ency in village affairs,so the economic imperative to permit the free flow of information in order to realize sustainable economic develop- ment has been a driving force in developments at the national level. The Chinese government has long been the primary source and ar- chiver of all kinds of information relating to social,economic,and political affairs.An oft-quoted statistic estimates that 8o percent of all useful information in China is held by the government,and that most of this information is not public.26 Chinese scholars point out that a monopoly on information leads to waste of and inefficient al- location of resources,corruption,and fraud,as well as policy-related constraints.One example concerns Ioo counties in Shanxi province that applied for approval to build power plants utilizing their rich coal reserves,only to discover after a year of wasted effort that the existing power grid in the region could no longer accommodate any more power plants.27 Despite the absence of national OGI legislation,a conducive pol- icy framework is encouraging central government ministries to grant greater public access to their files and share an ever-wider array of information with the public,posting more and more information on their official Web sites and implementing a recently introduced gov- ernment spokesperson system.For example,the Ministry of Foreign Affairs in 2004 announced new measures to open its archives and declassified some Io,ooo items from between 1949 and 1955,the first batch of diplomatic files to be released since 1949.The National Auditing Office (NAO)decided in 2003 to make all its annual reports public and for the first time released the entire text and posted it on TOWARD A MORE OPEN CHINA? 65 FLORINI CH02indd 65 3/2071:21:16PM
toward a more open china? 65 tiative of matters that should be extensively known to and participated in by the public, as well as disclosure upon request; 3) timely and satisfactory explanations in the event certain information cannot be disclosed upon request; and 4) establishment of evaluation and supervisions systems to ensure that government officials carried out these principles. The Joint Opinions further called for the speedy formulation of State Council Regulations on Open Government Information, while encouraging the localities to develop local rules to establish a legal basis for open government affairs in the interim. It is clear that a combination of economic and political factors is driving the Party leadership toward recognition of the need to change its style of governance and to promote greater transparency. Just as financial oversight was the primary motivation for greater transparency in village affairs, so the economic imperative to permit the free flow of information in order to realize sustainable economic development has been a driving force in developments at the national level. The Chinese government has long been the primary source and archiver of all kinds of information relating to social, economic, and political affairs. An oft-quoted statistic estimates that 80 percent of all useful information in China is held by the government, and that most of this information is not public.26 Chinese scholars point out that a monopoly on information leads to waste of and inefficient allocation of resources, corruption, and fraud, as well as policy-related constraints. One example concerns 100 counties in Shanxi province that applied for approval to build power plants utilizing their rich coal reserves, only to discover after a year of wasted effort that the existing power grid in the region could no longer accommodate any more power plants.27 Despite the absence of national OGI legislation, a conducive policy framework is encouraging central government ministries to grant greater public access to their files and share an ever-wider array of information with the public, posting more and more information on their official Web sites and implementing a recently introduced government spokesperson system. For example, the Ministry of Foreign Affairs in 2004 announced new measures to open its archives and declassified some 10,000 items from between 1949 and 1955, the first batch of diplomatic files to be released since 1949.28 The National Auditing Office (NAO) decided in 2003 to make all its annual reports public and for the first time released the entire text and posted it on FLORINI CH 02.indd 65 3/2/07 1:21:16 PM
the NAO Web site.In the past,these reports had been submitted only to the State Council and the NPC.2 In 2004,the NAO created a national "audit storm"with its public report that 4I ministries under the State Council had misappropriated as much as the equivalent of USSI71.56 million,including the embarrassing news that the State General Administration of Sports had embezzled USSI5.83 million from the country's 2008 Olympics special construction fund.30 Since its embarrassing initial cover-up of the Severe Acute Re- spiratory Syndrome(SARS)outbreak in early 2003,China is becom- ing more open in disclosing news about disasters,which typically have not been reported.Observers were surprised when China,not known for transparency regarding its military,reported a fatal sub- marine accident in May 2003,and the Chinese press covered a series of troubling mining tragedies in the autumn of 2004.31 The State Council Information Office announced that government agencies would make more information accessible to the press and the pub- lic in 2005.32 These are just a few examples of diverse areas in which the practice and culture of greater openness is expanding. The Legal Framework for Information Access While open government information is now endorsed as a policy matter,China still lacks national OGI legislation,and Chinese law does not provide clearly for information rights.Efforts to promote greater transparency under the "informatization"and "open govern- ment affairs"programs mentioned above have met with resistance from officials accustomed to preserving a shield of secrecy around themselves and their work.Despite high-level articulation of the im- portance of open government affairs,that program was never insti- tutionalized in a uniform manner throughout the country.Without clear legal requirements,governments and local bureaucrats have been free to decide how and to what extent to publicize government information and operations.Indeed,existing legislation,such as the Law on Guarding State Secrets,the State Security Law,and the Archives Law,emphasizes secrecy,not disclosure of government- held information. In recent years,however,the State Council and some local gov- ernments have undertaken to "legalize"the open government affairs 66 PART ONE:NATIONAL STORIES FLORINI CH02indd 66 3/2071:21:16PM
66 part one: national stories the NAO Web site. In the past, these reports had been submitted only to the State Council and the NPC.29 In 2004, the NAO created a national “audit storm” with its public report that 41 ministries under the State Council had misappropriated as much as the equivalent of US$171.56 million, including the embarrassing news that the State General Administration of Sports had embezzled US$15.83 million from the country’s 2008 Olympics special construction fund.30 Since its embarrassing initial cover-up of the Severe Acute Respiratory Syndrome (SARS) outbreak in early 2003, China is becoming more open in disclosing news about disasters, which typically have not been reported. Observers were surprised when China, not known for transparency regarding its military, reported a fatal submarine accident in May 2003, and the Chinese press covered a series of troubling mining tragedies in the autumn of 2004.31 The State Council Information Office announced that government agencies would make more information accessible to the press and the public in 2005.32 These are just a few examples of diverse areas in which the practice and culture of greater openness is expanding. The Legal Framework for Information Access While open government information is now endorsed as a policy matter, China still lacks national OGI legislation, and Chinese law does not provide clearly for information rights. Efforts to promote greater transparency under the “informatization” and “open government affairs” programs mentioned above have met with resistance from officials accustomed to preserving a shield of secrecy around themselves and their work. Despite high-level articulation of the importance of open government affairs, that program was never institutionalized in a uniform manner throughout the country. Without clear legal requirements, governments and local bureaucrats have been free to decide how and to what extent to publicize government information and operations. Indeed, existing legislation, such as the Law on Guarding State Secrets, the State Security Law, and the Archives Law, emphasizes secrecy, not disclosure of governmentheld information. In recent years, however, the State Council and some local governments have undertaken to “legalize” the open government affairs FLORINI CH 02.indd 66 3/2/07 1:21:16 PM