EAST CHINA VIEWS ON THE OPEN GOVERNMENT INFORMATION ACT

UNCLAS SECTION 01 OF 02 SHANGHAI 000154 SENSITIVE SIPDIS DEPT FOR EAP/CM, INR, DRL EMBASSY BEIJING FOR RULE OF LAW COORDINATOR AMY LEE DOC FOR ITA/MAC - DAS KASOFF, MELCHER, SZYMANSKI, COUCH, LEHRMAN TREASURY FOR OASIA - DOHNER/HAARSAGER/CUSHMAN NSC FOR LOI, KUCHTA-HELBLING E.O. 12958: N/A TAGS: PGOV PHUM SOCI KJUS CH SUBJECT: EAST CHINA VIEWS ON THE OPEN GOVERNMENT INFORMATION ACT REF: SHANGHAI 151 (U) This cable is sensitive but unclassified and for official use only. Not for distribution outside of USG channels or via the internet. -------------- Summary -------------- ¶1. (SBU) As the implementation of the Central Government's Open Government Information (OGI) Regulation approaches its first anniversary on May 1, officials in East China are handling a deluge of public requests for information, as well as subsequent administrative litigation lawsuits against governmental agencies which failed to offer the requested information. At the same time, some ambitious lawyers are resorting to the OGI as a new channel and legal tool to call for more transparency in local government decision making procedures, including local budgets. Fearing a continued onslaught of OGI requests, local officials in East China are setting up procedural barriers and using "national security" as excuses to refuse to provide the requested information. To date, courts in East China have declined most OGI-related lawsuits. End Summary. -------------- One Year Anniversary in Shanghai: Information Requests and Lawsuits Grow -------------- ¶2. (SBU) On March 31, the Shanghai Municipal Government published its first annual report on OGI Regulation Implementation in Shanghai. According to the report, the municipal government received nearly 15,000 information requests in 2008, investigating 9,388 of the requests, which was a 45 percent increase over 2007. At the same time, the number of administrative litigation lawsuits against government agencies skyrocketed to 258 cases, which was a nearly nine-fold increase over the 30 cases in 2007. The increasing number of requests for information and administrative legal cases were primarily due to the new OGI Regulation, our interlocutors said. ¶3. (SBU) The annual report revealed some additional basic facts on the first year of the OGI's implementation in Shanghai. Of the 9,388 requests, 9,027 pieces received a formal response from the municipal government. Among them, 5,320 cases were approved to be disclosed, comprising 58.9 percent of the total. An additional 287 requests were approved in part, but 502 requests were wholly rejected by the government (304 of the rejections reportedly on the basis of being related to "state secrets"). ¶4. (SBU) In response to ConGen Rule of Law Coordinator's questions on the categories of information disclosure applications, Zhao Weizhong, Vice Director of the Shanghai Legislative Affairs Office's Institute of Administrative Law, pointed out that housing demolishment compensation and urban planning were two major categories attracting public attention in Shanghai. Zhao stated that according to the annual report, the Shanghai Municipal Housing Bureau and Shanghai Municipal Urban Planning and Land Resources Bureau received most information disclosure requests. -------------- Lawyers Suing Provincial Governments on OGI -------------- ¶5. (SBU) Lawyers in East China have been seeking to utilize the OGI to bring public information suits against both the Central Government (reftel) and local governments. Yuan Yulai, a Zhejiang-based lawyer, sued the Anhui Provincial Government for failure to disclose public information related to housing demolishment cases in October 2008. Although Yuan lost the case, it was first time that a provincial government was sued as a defendant under the OGI Regulation. A Zhejiang University law professor who is familiar with Yuan's work told Rule of Law Coordinator during a visit to Hangzhou on March 31 that by suing the Anhui Provincial Government, Yuan also was inspired to sue the Jiangsu Provincial Government for not disclosing information SHANGHAI 00000154 002 OF 002 in a similar case. (Comment: The fact that Yuan, a native of Zhejiang Province, was willing to sue the Jiangsu and Anhui provincial governments but did not pursue any OGI provincial-level cases in Zhejiang is an illustration of what we heard from several legal experts, who said it remains easier to file lawsuits against localities outside a lawyer's normal jurisdiction. Otherwise, lawyers fear their hometown Bureau of Justice would retaliate against them for "biting the hand that feeds them." End Comment.) -------------- Local Officials: Stepping Backward -------------- ¶6. (SBU) Zhao Weizhong of the Shanghai Legislative Affairs Office acknowledged the OGI Regulation's shortcomings in implementation, stating that local officials' reluctance to disclose information remains a big problem. According to Zhao, local leaders in East China fear that applicants would use the information to challenge administrative decisions or internal policies, which would cause widespread dissatisfaction among the citizenry on sensitive cases such as those involving house demolitions. Zhao explained that government officials at all levels are concerned about losing power by relinquishing information. ¶7. (SBU) OIG applications rejected in Shanghai for "national security" reasons underline the problem, our Shanghai-based interlocutors said. In Jiangsu Province, a High Court judge also complained to ROLC during a visit to Nanjing on March 30 that local government agencies are "uncooperative" when it comes to providing public information. The judge said that sometimes even local courts cannot easily obtain government information but are politely refused by excuses such as "the information does not exist" or "the relevant official is out of the office." -------------- -------------- Courtroom Dilemma: Less Space for Judicial Discretion -------------- -------------- ¶8. (SBU) According to Zhejiang University Law School Professor Zhang Jiansheng, the China Supreme People's Court originally planned to issue a judicial interpretation to broaden the scope of OGI Regulation lawsuits that could be accepted. At an internal meeting during this past winter in Shanghai, judges from the Administrative Court of the China Supreme People's Court reportedly suggested that all government information should be disclosed except for "national secrets, commercial secrets and private information," Zhang said, and any information not forbidden to be disclosed by law should be automatically disclosed. This viewpoint was attacked by local government officials, however, who think the OGI Regulation is unpractical and virtually impossible to implement, Zhang added. Ultimately, a State Council document allowing local government agencies to refuse applicants for social stability reasons diluted the OGI Regulation's power. ¶9. (SBU) Following the internal debates on the OGI Regulation, our interlocutors told ROLC that courts in East China found less space for judicial discretion and were forced to significantly slow down the pace of OGI-related cases. According to officials at the Shanghai High Court, only one plaintiff has won an OGI case during the past year, while all other cases were won by the municipal government. Jiangsu High Court Judge Chen Ying said Jiangsu courts seldom accept OGI Regulation cases, and he does not think evidence presented as a result of the OGI Regulation will impact any trials in his court. Zhejiang University Law School Professor Zhang Jiansheng claimed that no applicants in Zhejiang have received a successful judgment from local courts in OGI-related cases. Zhang is concerned that as the first anniversary of the OGI Regulation approaches, incomplete implementation of the regulation may leave East China residents feeling that the OGI is merely an "empty promise." CAMP