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Eric Carlson
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China’s Top Court Issues Interpretation On Transparency Regulation

China’s Supreme People’s Court (“SPC”) recently issued a judicial interpretation of the “Regulation on Open Government Information” (“OGI Regulation”), the regulation adopted by the Chinese government in April 2007 in an effort to make government information more accessible to the general public in China.

The OGI Regulation requires government agencies to disseminate certain types of information on their own initiative and to respond within certain time limits to requests from citizens and businesses for information.  Implementation of the OGI Regulation to date has varied widely across provinces and agencies.

Lawsuits filed in local people’s courts by individuals and organizations seeking to compel agencies to release information per the OGI Regulation similarly have met with varying levels of success.  According to the state-run Chinese Academy of Social Sciences, 51 of 59 central government departments and 70% of selected city governments failed to pass an evaluation in 2010 regarding compliance with the OGI Regulation.

The SPC interpretation publicly released on August 13 (English translation here) aims to provide more clarity regarding when courts should accept or reject lawsuits filed by citizens seeking to compel release of government information.

The SPC interpretation lists five situations where a court should accept a lawsuit, including if the agency fails to respond, fails to respond within the prescribed time limit, provides a response that fails to meet the standards in the OGI Regulation, or refuses to correct information after being requested to do so.  (A court also should accept a lawsuit to prevent disclosure if a citizen or organization applicant believes that the release of information infringes upon trade secrets or personal privacy.)  The agency bears the burden of proof to show why a refusal to provide the information is lawful.

The SPC interpretation lists other situations, however, when a court may decline to accept a lawsuit to compel release of information, including when the agency states that it does not have certain information, or when a response would involve disclosure of trade secrets, state secrets, or infringe upon personal privacy, with no possibility for challenging an agency’s self-classification.  Some commentators have noted that, like the original OGI Regulation, the exceptions are large enough to swallow the rule if an agency does not want certain information released.

While the SPC interpretation provides more clarity around lawsuits to enforce the OGI Regulation, it does not alter limitations in the original OGI Regulation, including that a applicant must show that the request for information is relevant to the applicant’s own “production, life, scientific research or other special need.”  The SPC interpretation also does not modify the carve-out for “state secrets,” a term which in the past has been broadly interpreted by some agencies in declining to release information.

In sum, the SPC interpretation is a small step, but only a small step, in promoting greater governmental transparency and public access to information.

Eric Carlson is a Beijing-based attorney at Covington & Burling LLP. He specializes in anti-corruption compliance, with a particular focus on China and other regions of Asia. He speaks Mandarin and Cantonese. He can be contacted here.

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