Jun 6, 2008
FOIAs? In my China?
BY DERRICK SOBODASH
t’s more likely than you think …
Despite the meme-like nature of this post’s title, this is an incredibly serious topic. The prospect of China getting a functional FOIA bill is the kind of news that could give pundits employed by US corporate media an aneurysm.
For readers not in the know about media, the US Freedom of Information Act is what lets reporters get access to city spending records, arraignments, mug shots and everything you ever wanted to know about L. Ron Hubbard.
Now that I have your attention, might I mention the bill is already passed? It was signed into law last year by Wen Jiabao and took effect this May 1. Now that in itself is nothing special. China passes tons of bills on a variety of topics every year: most of them are lip service.
A gentle way to describe the legal system in China would be to say “it is in its infancy.” This is the phrase frequently used by the professors and legal experts cited in the Chinese media where I work. A more brutal way to describe the legal system in China would be to say “it’s not there.”
The central government frequently passes new bills designed to give people more rights. The problem is that neither the people who can benefit from these bills nor the people who are supposed to enforce them are listening. Last year, a bill passed around the same time was said to guarantee the privacy of the lawyer-client relationship. According to the law, lawyers are supposed to be able to meet with their clients in private when discussing a case. This law, of course, vanishes in the prison system, where prisoners may only meet with their lawyers in the company of several correctional officers in a room that may or may not be full of bugs.
Many times, the people these laws are supposed to protect abandon the fight against a seemingly dispassionate system, never making it to the courts where the law could be tested and strengthened. Consequentially, Chinese courts rarely address constitutional questions, and are more perceived as the battleground where big powerful companies squabble over yuan penalties.
This time might be different.
The bill in question is bill #492, the Government Information Disclosure Bill (full text at 政府信息公开条例) which rocketed through the State Council with the customary 165 votes. It was discussed January 15, 2007, signed April 5, 2007, and took effect this May.
According to the Chinese text of the bill, of which I know of no English translation, the stated objective of the bill is to “facilitate a more open government.” Open government has been a big buzz word here the last two years, and quite a few bills are being pushed through to achieve it.
Of course that bill to make the salaries of all officials, even those in the politburo, open to public scrutiny keeps getting shot down, but that’s another story …
The bill demands that its terms be carried out with “impartiality, fairness and convenience.” To this end, it places a 15-day limit on response time to all information requests, a statement of reason for why information is denied and if it is denies and prevents public bodies from considering who is requesting the information when evaluating whether or not it can be released.
Sound familiar? It should. Especially if you have ever worked in the US media.
Unlike the US FOIA, the text of the Chinese bill is very direct and focused only on the release of information. The full text of FOIA is quite long and covers some other related areas, but its terms for the release of information are where US citizens most directly experience FOIA.
To summarize the bill for non-Chinese-speaking readers:
- Citizens, legal persons or organizations may request public records to ensure their accuracy. Should inaccurate information be discovered, they can submit evidence and petition the body to change the record.
- Citizens can take initiative to apply for access to “necessary public information.”
- People whose right to know has been violated may apply for administrative reconsideration or bring a lawsuit against the administration.
- Government cannot be paid through an intermediary to provide said information.
- The law provides that state secrets, trade secrets and details which involve personal privacy do not need to be revealed.
This should be sounding really familiar by now. I especially like that they actually spelled out a ban on intermediary organizations in this bill, otherwise an entire black market industry to grease the palms of higher ups would have appeared overnight as it has in the visa sector.
What is “necessary public information”? Three Peking University professors say any record of a public body. For purposes of the bill, the effects stretch even farther than the US FOIA. It says that not only are government agencies subject to this bill and required to release information, but so are private companies “which are connected to people’s daily lives.” This means education, water, heating and public transportation companies are also subject to the law. If you live in Michigan, an example would be filing a FOIA for Detroit Edison’s records. In California, it would be like filing a FOIA for Enron’s.
The professors are investigating the airport expressway, which was built as a public works project. Initially the municipal government said it would only charge a toll for three years until the loan to build the highway was paid off. Of course, it has since had a change of heart and extended this term to 30 years.
The transportation committee has already responded to the men’s request, saying it will provide an answer within 15 days. However, Beijing Capital Highway Development Group, the public company that owns the road and decides where toll money goes, has mysteriously “lost” the request it received.
Imagine that.
This sounds more like FOIA tactics every second.
The group refused to answer phone calls from the professors, and asserts it is not subject to the terms of the law. The professors plan to push their case, and said they will file a lawsuit against the development group if it refuses to comply. They have also opened a hotline so anyone in Beijing can call in to learn how to properly file an information request.
Lack of determination is what lets most Chinese laws fall by the wayside. I have asked one of our reporters to follow this story and see what becomes of the case. If these professors get the information they request, it will be a huge triumph for the Chinese legal system and will set a precedent for future government disclosures. A win like that stands to rewrite the journalism curriculum of China overnight. If they quietly slink away, or if the courts strike down their request, it would mean the failure of this bill.
Either way, this is a terribly interesting development and could result in China having an even more powerful FOIA-like law than the US … either that or another fine page of kindling stained by black ink.
The only thing which makes me nervous is the lack of anything spelled out in the law to state that the mere presence of information which cannot be disclosed within a greater information request is not grounds to deny the whole request.
To be fair, the US FOIA did not have this provision either — it was decided later by the courts during one of the many battles between journalists and public bodies. However, I doubt the willingness of Chinese courts to so broadly interpret the law.
What do you think this bodes for the future of reporting in China? How will it influence non-Xinhua agencies’ access to information? What kinds of new corruption stories might it open the doors to, and will the government support such pursuits given its new view of the media as a corruption watchdog?
I want to hear what you think.
Honestly, in the long run it probably won’t make much of a difference. It might force certain bodies to change how they do shit so as not to get caught, but I don’t think its going to radically change how these places used to/still do operate.
Granted I do think some stories of corruption will arise, but I’m sure it will all get swept under the carpet.
Then again I’m feeling awfully pessimistic lately. :p
First, why does it take an entire year for a law to take effect? It seems like a long time when it should take effect as soon as it’s signed in, right?
Anyway, I don’t know much about China but for what I know, I don’t think they’re known for successful public actions.
I doubt they’ll feel pressed to release this information. If they do, it’ll most likely be after they’re bribed by the government to do so. This way, the government can put on a nice image even if the law isn’t working as intended.
However, I do think this law will be nice for things not so sensitive.
Senka: Typically, all laws in China are set to take effect at some pre-defined point in time after their signing. One year is very normal. An optimist would say this is to give agencies time to prepare for how they will have to comply with the law.
I am not sure to what extent this law will impact requests made to the central government. In the US, many FOIA requests to federal government agencies are rejected either by saying you directed your request to the wrong office. Of course, they won’t tell you to which of the 200 offices it should have gone, or they will claim it is a state secret — the reason you cannot get reliable information about Area 51.
I think the strength of FOIA in the US, and perhaps of this law here, will be in city and province level investigative reporting. As the professors already argue, it has a value to researchers as well.
Note that the central government has been coming down hard on bribery the last four years, and many officials are sentenced to life imprisonment or executed if convicted of corruption. I forget what amount of money or goods and official must accept to be found guilty of corruption, but it is lower than you would expect. The trick is exposing it — something the media here has had only partial success with.
You can’t point to a law like this to blow the lid on really huge national scandals unless the government has left a monster paper trail for someone to follow. FOIA is not how things like Blackwater and Watergate got exposed.
So let’s say the information is released. What then? Is any action going to actually be taken if the information is released? By my understanding, simply having the information to expose corruption doesn’t mean the corruption stops. Seemingly in the Chinese (probably any other court system) system, the corruption is built upon the court or the government’s acceptance of it. Somehow seems to me that the entire system has to change, or people have to change. Clasically, neither of these happen often, excepting perhaps an extremely bloody war.
It’s not so much acceptance as a network of favors. When people run out of strings to pull or when the situation is so terribly severe that someone, somewhere along the line can’t bear to it morally, then the boot comes down.
Putting the corruption and watchdog issues aside, a law like this is important in that it gives people a window into government processes and where their taxes are being used. The question is to what end. Why does the government want to do this?
It would be incredibly ignorant (hello Nightwolve) to suggest they are doing this so they can index and blacklist or arrest anyone who dares ask questions. Thinking that way screams of the old Cold War red terror, and anyone who gets outside and talks to other humans probably knows that is just not how the world is today.
So what then? Is it as simple as the goals the law states, or is there another motive? Given how little coverage was afforded to the passage of this law even in Chinese media, it does not seem like one of the classic “Look how awesome we are” PR maneuvers.
So is the implication that the government, or at least the pieces of the government that aren’t corrupt now have decided to go after corruption? I do feel the need to ask “why now?” More than that though, why necessarily corruption, rather than attempting to improve the quality of things such as healthcare, wealth distribution and education? I’ve never really quite understood why administrative bodies always choose one thing to “target” rather than attempting to holistically evolve their government. It would require more infrastructure, but I’m sure there are people there who could do it. Though maybe the theory is that a holistic approach leads to holistic corruption. In which case, targeting sectors is easier and more manageable for all parties involved, despite being massively unfair to that sector.
I can understand the disconnect as Chinese news isn’t really covered outside China, but it has taken a lot of steps the last year in health care. Wealth distribution … they say they want to fix that but it just keeps getting worse. Health care on the other hand, they are trying to work out a government insurance program to get everyone on.
The biggest problem here with health care is corruption in the medical system itself. Whether you have insurance or not doesn’t really matter. If you have insurance, they just say, “Aha, then I can prescribe you even more expensive stuff so your co-pay ends up being the same as a normal prescription.” There are also no laws to empower a patient’s family to pull the plug on life support, which hospitals have abused to leave rural families with a debt amounting to US $2 million.
Corruption is something very entrenched in Chinese culture, and it has been this way for more than 500 years. If you look back at old Imperial governments, there were multiple times that emperors set out to purge the country and actually executed everyone found guilty of corruption. Unsurprisingly, these guys usually ended up poisoned and corruption bounced back twice as strong. I think that historical precedent probably has a lot to do with how aggressively they can go after it.
So you could say that right now, the corruption focus is at certain levels within the party. They are primarily going after officials at various ranks who are found to be stealing tax revenue or severely abusing power. Lighter abuses of power usually get them reassigned to some terrible area (Don’t get me started on that … I can’t unravel the logic of sending the most corrupt fuckers to the areas that need the most help …)
And as far as the medical sector, most of the busts have been more about outright illegal activity than corruption. Earlier this year a hospital in … I think it was Shaanxi, but I forget, got shut down and all its upper staff arrested because they found out their cancer patients were selling their medicine to drug lords who were from it refining narcotics. So the hospital decided to cut out the middle man and sell directly to the drug lords. They got busted because the yearly government audit of medicine revealed they sold more than 10x the amount of that medicine than every hospital in the country combined. Last I heard, the director who organized the plan is awaiting sentencing, and most likely execution.
I do have a question about the debt to families. How exactly is the debt of a deceased member of the family passed on? I really have a hard time coping with any justification for dumping someone else’s debt onto someone else. I’ve always been pretty confident that the problem with doing that is that it causes massive deflection away from the problem, which is related to the credit system’s endless greed.
I somehow feel that there must also be a historical precedent for, rather than trying to solve corruption, attempting to help the people. I find that trying to solve corruption to be, as you have said, a pursuit that typically just brings corruption into the fray even more so than it had been before. Instead, it seems more logical that those member of the government that aren’t corrupt would attempt to work on fixing the more dangerous problems of making sure everyone gets to eat, sleep, and live indoors. Hell, ever since gas prices have gone through the roof, I’m beginning to question the ability of the lower class to manage itself in the face of the coming years in the US. Handouts aren’t the answer either, because it doesn’t actually give the people who need help anything to do. It’s just a quick fix to an extremely historical problem.
I’m not really naive enough to believe that simply by allowing information to flow freely to the public that much will change within the government. In which case, I see two possibilities. Those inside the government must learn to work around the weaknesses of their own government and attempt to find a better way to work with a broken system, or people must find a way to change the broken system so that they are no longer disadvantaged by it. I honestly feel that the first on is more likely, particularly in countries where voting is seemingly at a premium for whatever reason (unfortunately this seems to apply to the United States as well since there’s a disgusting amount of apathy towards our government, much less its desire to get anything done for the people).
That’s kind of hard to respond to. You’re right in that information being available doesn’t change anything. My point in all this is not that China is somehow going to change radically under this new law. It is that this law may give responsible reporters another tool to help expose corruption. After that, it is up to the people and the government to act on the exposure.
Well, as you’ve said, I hope the courts decide to uphold it. Government scrutiny certainly has its uses.
Hi Derrick,
Yes, indeed, there are corruptions. But, however, China has changed a lot since the last 30 years. You have to admit, because I have been living in this country for almost 27 years.
>> Lighter abuses of power usually get them reassigned to some terrible area (Don’t get me started on that … I can’t unravel the logic of sending the most corrupt fuckers to the areas that need the most help …)
———-
It works that way in the US — especially in the Church. When they find the (admittedly small% of) sicko priests who abuse kids, or those who are corrupt/incompetent in other ways, they “hide the problem” by shipping them off to somewhere which would be better served by BETTER priests, not worse ones. The Archdiocese including my home town, the Big Easy, is a prime dumping ground.