The first anniversaries of the State Council Open Government Information Regulations (OGI Regulations) and the State Environmental Protection Administration Measures on Environmental Open Information were last week. We will be posting a Year in Review article by my colleague Joan Hu (Chinese version already available) that tells the tale of open information in China over the past 12 months, so stay tuned.

As we look back on this first year, not surprisingly, there have already been quite a few cases in which lack of clarity, strained readings or outright disregard for the regulations have led to members of the public having difficulty in obtaining environmental information. Heilongjiang's refusal to release information about polluting enterprises (here and here) last week is a fitting coda to a first year fraught with open information ups and downs. So, it was welcome news to see a Caijing (Chinese only) report on the Supreme People's Court (SPC) plan to release a judicial interpretation on the adjudication of open government information cases this year (a public comment draft may be available on or about May 1). As Tsinghua University constitutional law professor Cheng Jie notes: "In practice, some courts have been unwilling to accept these [open information] cases, and, if cases are accepted, the rate of favorable decisions for the plaintiff is very low... This state of affairs will lead to the accumulation of contradictions." (不过实践中，一些法院不愿意受理这类案件，即使受理了胜诉率也很低，程洁认为，这会导致矛盾的积累。)

The Caijing article highlights three particular areas that need clarification. There are certainly other areas in need of clarification, but these are worth highlighting.

1. Clarification of Exceptions. This is the big one and an area where the SPC can do a great deal of good. The regulations allow the government to withhold disclosure where information requested concerns state secrets, commercial secrets and individual privacy (Art. 14). However, there has always been confusion about four other factors mentioned in the regulations that the article lumps in as grounds for non-disclosure: state security, public security, economic security and social stability (drawn from Art. 8).

The first three exceptions are commonly found in open government information laws around the world and there is well-established practice as to how to interpret those terms.

The last four 'exceptions,' if indeed construed as separate exceptions, are worrisome. On top of the traditionally accepted exceptions, they seem to layer broad, ill-defined grounds for refusing to disclose information. It is easy to see how these additional elements could be interpreted in a way that swallows up wide swathes of information normally disclosed to the public in other countries. Can information about the poor environmental performance of a factory be withheld on 'social stability' grounds if local government officials fear that disclosure will lead to local citizens to organize and seek redress or file complaints? Can 'economic security' be justification for non-disclosure of such information if local officials believe that disclosure would make it difficult for them to attract additional industrial investment (a sort of pro-"race to the bottom' argument)? Indeed, one commentator noted with approval exactly these justifications for non-disclosure in an op-ed piece (Chinese only) supporting the Heilongjiang government's decision to keep polluter information secret (one of my colleagues points out that this piece is intended as satire; even so, the article points out typical underlying motives behind the impulse to maintain secrecy).

2. Who Must Disclose? The Caijing article also raises the question of who must disclose information. Do entities that are authorized by the government to perform certain duties required to disclose information? Do enterprises or state-run institutions (shiye danwei) have disclosure obligations? This issue has come up in the environmental arena over the past year because of the unusual structure of the SEPA Environmental Open Information Measures, which place certain disclosure obligations on the enterprises (namely, disclosure of emissions data by significantly polluting enterprises). Public requesters of information have found themselves in a twilight zone of non-disclosure in certain cases, with the EPB claiming that the duty of disclosure rests with the enterprises and the enterprises claiming the duty rests with the EPB (see, e.g., the Greenpeace BASF case). In the rest of the world, factory environmental data reported to the government is considered "government data" and the duty to disclose typically falls upon the government. The SPC can help to clarify the ambiguity in the Chinese disclosure requirement here.

3. Why Do You Need the Information? The OGI Regulations seem to suggest a sort of needs test, requiring a showing by the citizen, legal person or other organization that its request for information is "based on the special needs of such matters as their own production, livelihood and scientific and technological research" (Art. 13). International practice (see, e.g., the Aarhus Convention, Art. 4) does not generally require the public to demonstrate a reason for its information request. Government information is public property and a member of the public can obtain it for any reason (subject to the narrowly prescribed exceptions). But the OGI Regulations are vague at best on this point, and the SPC can make certain here that the regulations do not require the public to explain why it needs the information. A requirement for the public to justify its need for government information would go against the grain of international practice, create an unreasonable, extra barrier to the public's ability to obtain government information, and establish a tool for arbitrary refusal of disclosure to the public.

Disputes over government information disclosure will be unavoidable. The key is establishing a robust, transparent mechanism for resolving these disputes when they arise. 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.

Visit Greenlaw! See NRDC's bilingual blog dedicated to discussion of China's environmental law, policy and the power of the people at http://www.greenlaw.org.cn (Chinese) and http://www.greenlaw.org.cn/enblog (English).