C O N F I D E N T I A L SECTION 01 OF 03 SHANGHAI 000035

SIPDIS

SIPDIS

DEPT FOR EAP/CM, INR/B, INR/EAP, AND DRL
STATE PASS USTR FOR STRATFORD, WINTER, MCCARTIN, ALTBACH, READE
TREAS FOR OASIA - DOHNER/CUSHMAN
USDOC FOR ITA/MAC - A/DAS MELCHER, MCQUEEN
NSC FOR WILDER AND TONG

E.O. 12958: DECL: 1/17/2032
TAGS: PGOV PHUM PINR KJUS CH
SUBJECT: SHANGHAI STRIVING FOR TRANSPARENCY THROUGH OPENING
INFORMATION

REF: 2005 SHANGHAI 415

SHANGHAI 00000035 001.2 OF 003


CLASSIFIED BY: Veomayoury Baccam, Acting Political/Economic
Section Chief, U.S. Consulate, Shanghai, Department of State.

REASON: 1.4 (b), (d)




1. (SBU) Summary: Two years into the implementation of
Shanghai's Open Government Information Act (OGIA)--one of the
few in China--local officials claimed that the act had had
broadened residents' access to government information and
improved overall government transparency. They said that a
forthcoming National Open Government Information Act (OGIA)
would be based on Shanghai's successful experience. Despite
official claims of openness, anecdotal evidence suggests that
enforcement of the OGIA was less than perfect, with at least one
high-profile case where a journalist was reportedly intimidated
into withdrawing his request. End Summary.

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OGIA at Two Years
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2. (SBU) Shanghai began implementing the OGIA in May 2004. The
act provided citizens and organizations the right to request
information from government agencies. While information related
to national security is excluded, the act established the
presumption of disclosure, making secrecy the exception and
established the "right to know," which does not appear in
China's constitution or any national law to date. Poloffs met
with local officials during the initial phases of the acts
implementation in early 2005. At the time, officials were
effusive in their praise for the act and claimed that it was a
"breakthrough point" in the city's effort to establish
"law-based government." (see reftel).


3. (SBU) On October 10, 2006, Poloff and Rule of Law
Coordinator (ROLC) paid a visit to the Shanghai Legislative

Affairs Office (LAO) to get an update on the local government's
implementation of the act and its impact on the local
government. (Note: The LAO had been key in drafting the OGIA.
End note.) According to LAO Institute of Administrative Law
Director Liu Ping, every government organization had a dedicated
unit and personnel devoted to making that organization's
information public. Liu explained that the LAO and the Shanghai
Municipal Supervision Commission were in charge of supervising
the governmental agencies on implementation of the OGIA. Every
year, the LAO ranked the agencies on its OGI performance and
published the ranking internally within the Shanghai government.
Liu added that the rankings would be opened to the public in
the future to allow all Shanghai residents the opportunity to
supervise governmental agencies' OGI work. Anyone who lived in
Shanghai--including foreigners--was allowed to request
information to be made public.

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Skyrocketing Information Requests
--------------


4. (SBU) Liu said that in the past, any request for releasing
government information needed to be approved on a case-by-case
basis. Since the OGIA went into effect in 2004, however,
information--with the exception of administrative information,
or information about a specific person or business--was presumed
open unless there was a reason to withhold it. This had led to
a more proactive government that had made public 185,317 pieces
of information during the first eight months of 2006--up from
50,281 pieces the year before. Most of the information was
available digitally on the municipal web site.


5. (SBU) The act had also led to a sharp increase in the number
of requests for information to be made public. In 2004, the
government received 8,799 such requests. Of those, 6,913 were
approved in full, 479 were approved in part, and 1330 requests
were refused--about 800 were refused because the information
requested did not exist. In 2005, the government received
12,465 requests to open information, approved 8771 requests in
full and 365 in part, and rejected 2,654. During the first
eight months of 2006, the number of requests doubled from the
previous year to 25,849 requests with 19,068 approved in full
and 1,017 approved in part; 4,695 requests were rejected.


SHANGHAI 00000035 002.2 OF 003



6. (SBU) According to Liu, rejection of a request did not
necessarily spell the end of a person's options. For example,
he said that in 2004: 38 applicants requested reconsideration by
a higher department within the same agency that had initially
refused them; six applicants filed lawsuits in court to dispute
the initial rejection; and 10 applicants took their cases to a
higher-level government bureaucracy for resolution. In 2006,
the numbers through August jumped to 189 requests for internal
reconsideration, 65 litigation cases, and 25 appeals to a higher
authority.


7. (SBU) Liu noted that there was also an increase in the
number of individuals searching municipal websites for
information. This indicated that the public was increasingly
concerned about information openness, according to Liu. During
the first year of the OGIA's implementation, the municipal
government's open information website had received 146,197,212
hits. Since then the number had shot up and there were
351,570,910 hits through August 2006. During the same period,
public inquiries--aside from requests to open
information--jumped from 124,129 to 784,144.

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Still Some Bugs to Work Out
--------------


8. (C) Liu noted that despite the success of the implementation
of the OGIA to date, there was still room for improvement. He
said that the lack of a clear definition on what constituted
"government information" often led local government agencies to
question whether some of the requested information should be
disclosed. Part of the problem surrounded the often blurred
line between party information and government information.
Party information needed to be opened as well, but that to do so
would require a separate set of laws, according to Liu.
Shanghai was also considering the question of charging a nominal
fee for information requests to keep people from abusing the
system. (Note: Liu did not say if he thought there were
currently people who were abusing the system. End note.)

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Following Shanghai's Path: A National OGIA?
--------------


9. (SBU) Liu told Congenoffs that that although the idea for an
OGIA had first been implemented in Guangzhou, Shanghai had been
the first provincial-level government to adopt one. Since
Shanghai enacted its OGIA in 2004, eight other provincial-level
governments had adopted similar legislation. Shanghai, however,
remained the example for others to emulate.


10. (C) Indeed, the central government was currently
considering a draft national OGI law, which, Liu noted with
obvious pride, was based on the Shanghai model. Moreover,
Beijing's drafting team had held several workshops in Shanghai
to learn from Shanghai's experience. Liu understood that the
national OGI law would follow the format and principles of the
Shanghai OGIA.

-------------- --------------
Credit Belongs to Shanghai Party Secretary Han Zheng
-------------- --------------


11. (C) Liu was also effusive in his praise for acting Party
Secretary and Mayor Han Zheng. According to Liu, Han was

SIPDIS
responsible for providing the initial thrust for the OGIA. In
2004, Han told the Planning Bureau that it needed to make more
of its information public and the idea spread from there. When
Han was elected Mayor in 2003, his motto was "a government of
service, a government of responsibility, and a government of
law." Liu said that the fact that the pension scandal that
brought down former Party Secretary Chen Liangyu came to light
proved that there was no problem with openness in Shanghai.
With Han now overseeing the Party, Liu was confident that he
would push for even greater transparency and openness.

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And the Lawsuits? Nothing to See Here
--------------


12. (SBU) On May 18, 2006, one of the first real tests of the
OGIA happened when Ma Cheng, a Chinese journalist with the
Shanghai-based newspaper Jiefang Daily, sued the Municipal Urban

SHANGHAI 00000035 003.2 OF 003


Planning Bureau after the bureau refused on several occasions to
disclose government information related to a story he was
investigating on urban planning. This case represented the
first time a journalist had sued the government in China for
denial of the access to information and garnered wide interest
from all over China. A Shanghai local district court accepted
the case only to have Ma withdraw it five days later.


13. (C) In an article posted on the Xinhua website in June
2006, Ma refused to explain why he withdrew his suit, saying
only that he "hoped in the future to have the chance to discuss
the issue with reporters." However in an explanatory letter to
the Chinese Journalist Association cited in the article, Ma
hinted that he had come under government pressure to withdraw
the case. Ma wrote that "some government bureaus have used
illegal and non-routine methods to restrict" his investigative
reporting. Zhao said that the LAO was aware of the case. Liu
claimed that Ma had withdrawn the case because, in the end, the
government gave him the information he had requested, not
because the government had employed coercive tactics. Ma has
not made any further comments on the case. (Comment:
Congenoffs remain highly skeptical that Ma ended his suit
because the government capitulated to his demands. End comment.)


14. (SBU) Liu said that in most cases where the plaintiff
dropped the suit, they did so because the agency in question had
reversed its initial decision. Such had been the case with the
very first lawsuit filed under the OGIA by Dong Ming (see
Reftel). In her case, the court upheld the agency's refusal
because it found that Dong was looking for the information from
the wrong agency. However, the government agency that Dong had
sued, then helped her figure out which agency had the
information she was seeking. With the former defendant agency's
help, Dong was reportedly able to get all of the information she
had been seeking.

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Comment
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15. (C) While there is a need for classifying government
information in any country, the default in the Chinese system
has been to label most all information a "state secret," leaving
most people in the dark on even the simplest of issues.
Shanghai's OGIA could be an important step towards creating a
more transparent bureaucracy. However, given the limitations of
the system--a broad prohibition on "administrative information,"
a poor definition of "government information," and the often
ambiguous distinction between party and government
information--there is still significant room for improvement.
End comment.
JARRETT