One Year of Openness: Greenlaw and the First Anniversary of China’s Open Information Regulations
公开一年间:Greenlaw《环境信息公开办法（试行）》实施一周年回顾
NRDC’s revamped Greenlaw (www.greenlaw.org.cn) site officially debuted on October 5th, 2008. The overall positive response to the “Open Environmental Information Regulations (Trial)” since May 1st, 2008 has played an important role in the creation of the site. The update rate of the old Greenlaw site was not up to the task of quickly dealing with new environmental law and open information developments, so revisions to the site were made in addition to continuing the original news service. Since February, the amount of writing on the site has rapidly increased, and the site has switched from its original schedule of 2-3 weekly updates to daily updates. There have already been 118 news pieces about open environmental information and 108 environmental law-related blog posts, among which 21 are posts about open environmental information. Over 1000 foreign and Chinese now visit the site each week.
In addition to laying the foundations for information disclosure in the State Council’s “Regulations on Open Government Information,” which sets legal obligations on the Chinese government for open government information, the Ministry of Environmental Protection’s “Measures on Open Environmental Information (for Trial Implementation)” is not just the first time the State Council has issued an implementation regulation concerning a government bureau. By specifying further responsibilities for the enterprises, these regulations could closely integrate with other environmental regulations, such as clean production promotion laws. This regulation promises to be the proverbial hammer that will smash the wall between polluting enterprises and the public, turning China from a bureaucracy-oriented country to a science- and democracy-oriented one, from a country that singled-mindedly emphasizes economic growth to one that focuses on sustainable development. In addition to these optimistic feelings, there are still some unavoidable, unfavorable challenges to be confronted. Looking back at the developments of the past year reveals a developing legal regime where the circumstances remain quite complicated.
The Government and the People Grow Up Together
If one views the Yuanmingyuan Fangshenmo incident four years ago to be a positive start in generating meaningful legal dialogue between the public and then-State Environmental Protection Agency, then the Xiamen PX episode two years later marked an even greater high point in the advancement towards effective dialogue. These two events acquainted the public and the government as public forces, and in 2008, following the official implementation of the Open Environmental Information Regulations, the public set out to understand and utilize the laws. By the end of 2008, various environmental protection NGOs had issued local citizen guides on open environmental information and public participation, in addition to conducting round-table conferences, training activities, and publicizing information on the new open information regulations.
At the same time, these environmental NGOs also began to carry out their own work with the new open environmental information laws. On October 30th and 31st, 2008, when the All-China Environment Federation hosted its annual meeting on sustainable development for environmental NGOs, many of the attending organizations, lawyers, and legal experts shared their experiences with the new open environmental information laws. Whether these attempts succeeded or failed, such actions had exposed many legal and practical problems with the law in its current state. For example, Greenpeace discovered in its “Investigation on Enterprise Pollutant Information Disclosure” that the BASF Corporation was not as transparent with its environmental record in China as it was in other countries, and that the chemical engineering powerhouse continued to keep silent about its emissions data in China. Greenpeace then submitted an application to the MEP seeking disclosure of BASF’s emissions figures. Their failed attempt, though, raised a series of questions for the public and legal world that still require answers: First, is the current system for publicizing an enterprise’s environmental record enough to satisfy the public’s right to that information? Second, is the government fulfilling its duty to achieve greater openness with its supervision of emissions and gathering of information? Third, what should be done about these enterprises’ environmental information business secrets? Will disclosing an enterprise’s emissions information have to involve making public its trade secrets?
The efforts of the public have also generated positive results. Last August, Friends of Nature joined together domestic environmental NGOs to investigate the Gold East Paper Company—a highly polluting enterprise seeking an Initial Public Offering (IPO)—about its environmental protection record. In March 2009, the Ministry of Environmental Protection fulfilled its obligation to disclose such data when it informed the public about its own investigation of the Gold East Paper’s attempts to join the market and gave clear and open answers to the questions raised by the environmental NGOs. Although the emissions of Gold East Paper still remain a concern, this move by the MEP is worthy of praise.
The actions of legal professionals have aided the advancement of environmental information disclosure. On May 5th, mere days after the enactment of the open information regulations, Shanghai lawyer Yan Yiming filed an environmental information disclosure request, thus initiating the legal world’s push for more transparency in environmental information. Months later, he once again captured headlines when he submitted an open information application asking for full financial disclosure of the central government’s four trillion RMB economic stimulus plan. In a similar move, Friends of Nature made an appeal for strengthening the stimulus plan’s commitment to the environmental protection at their annual environmental protection conference.
In the past year, it didn’t matter if the change was suitable or not, if the change was ready to happen or not, or if it the forces of change were governmental or non-governmental—what mattered is that the public focused on gaining greater transparency with environmental information. For NGOs, there is no longer the excuse of not having legal support, as more and more issues can now be resolved in the legal realm. For legislators, the dialogue process between the government and NGOs provides additional assistance towards implementing legislative goals effectively and quickly, including fixing legal loopholes and clarifying ambiguities vulnerable to exploitation. For the government, there is no longer time to slowly nudge the notion of change, because the new openness has become a legitimate legal obligation. This comment from from The Prosecutor’s Daily about statistics from the yearly report on government openness exemplifies the new sentiment: “Up to 24:00 on March 31st, 2009, 9 of the State Council’s 27 departments, 13 of its 16 directly subordinate organizations, 5 of the 6 work agencies, 11 of their 14 directly subordinate enterprises, and 15 of the 19 national administrations have not yet made their information public as scheduled, with 29 agencies that deal with the State Council, and 9 of the 31 provincial governments also not yet disclosing information to the public.” While not fulfilling obligations on time is quite common, the people are no longer complacent. While such problems may stem from the beginning of the law’s growth process, the comment also noted more change was needed. Ultimately, the “lack of punishment for not opening up on time will naturally keep these administrations from worrying or rushing.”
The Slow Development of the Courts
After May 1st, five citizens of Rucheng, Hunan Province, initiated China’s first open information suit, demonstrating civic awareness that would truly test the government’s new system of justice. But one month later, the people regrettably realized that the Chenzhou court still had not taken up the case. The public worried that if the justice system, as the last line of defense for social justice, stayed silent, then these new open information laws would serve nothing more than a decorative function. But perhaps this was only a reflection of transition difficulties, because on October 10th, the China Youth Daily and Beijing Daily both successive reports of a citizen victories in seeking information disclosure from the Hubei and Zhejiang provincial governments. Before the deadline, Hebei’s Baoding City also ruled in favor of some of its citizens seeking open information from the government, undoubtedly making many people happy.
Although we cannot view the actual environmental information case reports, we can still learn from the experiences of others. These above-mentioned cases will undoubtedly provide an opening for those who have been seeking to shine light on open environmental information. At a minimum, people now know that any administrative organs not dealing with open information applications are acting illegally, and that they can bring a lawsuit against such bodies. The significance of neutral judicial intervention is that when two parties are debating a piece of legislation, a judgment can bring justice while achieving the actual intent of the law. Although the open information judicial decisions to date have only addressed a small fraction of the problems that effective implementation of the law faces, it is worth waiting for the courts to become an even more powerful force in pushing for the legal development of open environmental information.
A Conservative Response from Enterprises
Last year, 250,000 people in Guangzhou submitted applications to the government for open information. The data in the annual open government information work report show that the public is serious as they demand more public information. Despite the shifting public sentiment, however, a few of the major enterprises who fall under the new transparency rules are simply turning a cold shoulder towards information disclosure requirements.
During Greenpeace’s campaign, BASF was arrogantly silent the whole time and has still not yet taken the initiative to voluntarily disclose its environmental information. The enforcement of clean production of enterprises on the government’s audit list is another issue, too. From last June, the Institute of Public and Environmental Affairs (IPE) led more than ten environmental NGOs in publishing the “Enterprise Environmental Information Disclosure Alert Letter,” directed at over 30 manufacturers in China. According to the open environmental information regulations, these enterprises are obligated to publicize detailed information about their pollutant emissions. Otherwise, the penalties include fines and forced disclosure by the Ministry of Environmental Protection. But only a few enterprises actually followed the regulations, with most choosing to simply stay silent, and the conduct was not punished. Because enforcement of the new environmental open information regulations is at such an early stage, it remains highly challenging to penalize enterprises for such violations.
Within these grey areas, the attitude of enterprises towards open environmental information remains vague and conservative. Last year, whether deliberately or not, the WalMart-hosted supplier summit demonstrated the growing influence of the open information regulations. While the company announced initiatives on environmental information disclosure and greening its supply chain, there has been little news of concrete achievements in implementing those plans to this day.
The Media Hard at Work
On March 31st, 2009, for the first time since the official enactment of the “Regulations on Open Government Information” and “Measures on Open Environmental Information (for Trial Implementation),” government bureaus began releasing their legally-mandated annual open information work reports. The Ministry of Public Security, Ministry of Environmental Protection, Ministry of Commerce, State Archives, and all provincial and municipal governments have now uploaded their reports online. In the beginning of April, Caijing, the Investigative Daily, and some other media outlets published commentaries on the annual reports. The public learned that many ministries and bureaus under the State Council had not fulfilled their obligations to release their annual reports on time. In the same month, using the information from the work reports, the media exposed the continuing challenges open government information continues to face. For example, while 250,000 applications for open information were submitted in Guangzhou in 2008, one nearby city received only one application in all of 2008. In analyzing the data from the reports and conveying the important points to the public, the media has taken on its role as an overseer in this first test of the new information disclosure regime.
There were many factors that made 2008 an extraordinary year, and the media played an irreplaceable role in following the implementation of government transparency. The prompt follow-up reports to some legal cases, as well as commentaries on the cases by experts and newspapers, were key in spreading awareness and usage of the new regulations. Discussions of the range and validity of open information, analyses of the practical legal problems related to open information, and dialogues on how to improve the existing system all shed light on the main issues in the first year of the open information regulations. But even still, most newspaper reports seemed half-hearted and shallow. This does not meet the enormous public demand for open information. As the law continues to develop, the media must get involved even more deeply.
Below is news about open information selected by Greenlaw from the previous year, as well as 21 blog articles written by our NRDC colleagues.
NRDC Open Information News and Blog posts summary list
May 2008—April 2009
A. Greenlaw blog post articles:
1．October 8, 2008
Post on open information disclosure fees (link)
· Shanxi government prohibits charging fees, but only for government information required to be disclosed (link)
2．October 23, 2008
Post summarizing recent victories in information disclosure (link):
· Lawsuit by Xu Jiangguo against Hubei Province Transportation Department (link)
· 68 villagers lodge win after complaint filed in Zhejiang on government refusal to disclose land lease obligations (link)
3．November 5, 2008
CLAPV citizen guide on information disclosure and Xiamen Citizen Guide on public participation and information disclosure launched (link)
4．December 18, 2008
Xinjiang and Urumqi citizen guides on information disclosure and public participation launched (link)
5．January 2, 2009
Jiangsu public holds community event on environmental information disclosure (link)
6．January 12, 2009
Post :Yan Yiming files for disclosure of 4 trillion RMB stimulus plan details (link)
7．January 17, 2009
Mixed Chinese reactions towards approved PX plant in Zhangzhou (link)
8．January 19, 2009
One Small Step for Chinese Environmental Public Participation? Civil Society Participates for the First Time in Hydropower Project Technical EIA (link)
中国向环境公众参与迈出的一小步？民间组织首次参与水电项目技术环境影响评价
9．January 28, 2009
Ministry of Environmental Protection revamps Chinese environmental data center (link)
10．February 5, 2009
News stimulus spending details released (link)
11．March 2, 2009
Post: Yancheng city water pollution draws criticism of information disclosure by government officials (link)
盐城水污染再读 （February 27, 2009）
12．March 3, 2009
Green Securities policy presses forward in China, with MEP and SRC circulars requiring information disclosure by heavily polluting industries seeking IPO (link)
13．March 5, 2009
January Green Yangtze Delta Newsletter released (link)
· Environmental information disclosure process of Green Zhejiang honored as top volunteer project in Zhejiang Province for 2008
· Chinese lawyer tests open government information system
14．March 10, 2009
Ppost: 4 trillion RMB stimulus plan’s details continue to draw public attention and calls for disclosure (link)
15．March 11, 2009
With 2008 SO2 and COD figures disclosed by Wen Jiabao and MEP, calculations indicate that China has met 2008 interim targets for SO2 and COD emissions cuts (link)
16．March 13, 2009
Friends of Nature calls for close oversight of stimulus funds (link)
17．March 19, 2009
Public participation drives MEP to undertake environmental review of Gold East Paper company (link)
18．March 23, 2009
Obama administrative reverse Bush-era FOIA interpretation (link)
B. Greenlaw newsletter chronological news alert:
May 4, 2008
- Liaoning opened information disclosure center (link)
- Qingdao opened information disclosure center (link)
- Nanjing information disclosure rule launched (link)
- Xinhua Commentary on open information law (link)
May 6, 2008
- Lawyer first requested environmental information from Henan and Anhui (link)
May 7, 2008
- The first case of information disclosure progress (link)
May 17, 2008
- Government information disclosure during the earthquake sets historical record (link)
- Shenyang opened information disclosure center (link)
May 31, 2008
- NGO requested information disclosure on Ahai hydropower station in Jinshajiang (link)
- Longhui county (Zhaoyang city in Hunan) party committee studied open information law (link)
June 7, 2008
- High level symposium on e-governance and open information held (link)
- Changsha EPB publicized environmental complains and solutions records (link)
- Tianjin started implementing open information rule (link)
- Wenzhou set information disclosure site at village level (link)
- Commentary: how much information can be disclosed? (link)
June 14, 2008
- Hangzhou publicized 36 pollution companies list (link)
- Qinghai provincial EPB publicized pollution companies list for the first time (link)
- Xiamen people can visit government information disclosure web from cell phone (link)
- Hubei Ezhou sets open information evaluation measures (link)
- Commentary on the China’s first information disclosure case in Hunan Chenzhou (link)
- Henan Jiaozuo city publicized 40000 items of information (link)
June 20, 2008
- Hunan Zhuzhou set up “enterprises environmental information disclosure day” (link)
-
June 28, 2008
- Ministry of Finance and NDRC said no fee shall be charged for information disclosure (link)
- Wulanchabu Qi of Inner-Mongolia had meeting on open information implementation (link)
July 5, 2008
- Zhejiang Changxing county launched government information disclosure rule (link)
- Jimei district of Xiamen city issues government information disclosure measures (link)
- Foshan city issued government information disclosure categories (link)
July 12, 2008
- Guangming daily commentary on information disclosure and responses (link)
- Multinational companies pollution information becomes business secretes in China? (link)
July 18, 2008
- Wuhan launched the first pollution discharge information online live show channel in the country (link)
- Open information is a win-win solution (link)
- Greenpeace pollution information disclosure action stuck (link)
- Ministry of Auditing issued informationalization work plan (link)
- Shannxi province fixed information disclosure site (link)
August 5, 2008
- Chinadaily commentary on the proposal revision on the state secretes law and information disclosure (link)
- Tieshan county in Fujian established government information disclosure mechanism (link)
August 12, 2008
- Sichuan summary of government information disclosure implementation (link)
- The first information request in Shenyang answered (link)
August 18, 2008
- The first personal information request case in Liaoning got answered (link)
- Chengdu issued government information disclosure rule (link)
August 28, 2008
- Shenyang launched environmental information disclosure rules (link)
September 1, 2008
- Han Fuzheng, lawyer fighting for open information in Cangzhou (link)
- Guiyang holds open information meeting, reviewing progress of last two years and future plans (link)
- Harbin to open 24-hour government information and complaint hotline in October (link)
- Harbin hosts city administration seminar focusing on government transparency (link)
- Op-ed: “No comment” reply to information request is an insult to the public’s intelligence (link)
- Jingmen’s Open Government Information initiative to create “transparent government” (link)
- Henan Provincial EPB: Polluters must release environmental information or be punished up to 100,000 yuan (link)
- Shenyang releases Trial Environmental Information Disclosure Rules (link)
- Yunnan removes cadres from office for harming the public interest (link)
September 8, 2008
- Ningxia County in Hunan releases telephone and mobile numbers of leading cadres as part of Open Information Disclosure (link)
- Dongsheng enhances government archival work (link)
- Shanxi government bans fees for open information access (link)
September 16, 2008
- Kunming readies government information portal for December release (link)
- New Fuzhou online government portal is leads users around in circles (link)
- Public participation necessary to prevent water pollution (link)
- Woxian holds Open Government Information conference to discuss public inspection (link)
October 10, 2008
News post (link)
· Sichuan Provincial Government issues three measures to support information disclosure (link)
· Hunan Provincial Administrative Procedure Act contains measures on public participation and information disclosure (link)
· Heilongjiang libraries to become information portals (link)
October 16, 2008
News post (link)
· Xiamen undertakes big program to enhance open information disclosure (link)
· Hefei library to become open information portal (link)
· Beijing Youth Daily op-ed praises the local residents and media of Loufan for trusting the word of mine authorities after a mine collapse (link)
· State Council member says public institutions have obligation to disclose energy consumption figures (link)
October 21, 2008
News post (link)
· Shanxi villagers win two lawsuits against local government that illegally transferred shares of township-owned coal company to third party and did not disclose such transfers (link)
· Investigation of Anhui provincial information portal turns up many blank webpages and dead phone numbers (link)
· Beijing Municipal Bureau of Statistics and the Beijing Survey Organization from the National Bureau of Statistics set five goals to coordinate the work of the Government Open Information Group (link)
· Xinhua op-ed calls for information transparency in price hearings on heating costs (link)
October 21, 2008
China BusinessWeek article on BASF’s lack of CSR in China due to lax open information rules (link)
October 24, 2008
Xiamen Open Information Citizen Guide released by Xiamen Green Cross (link)
November 17, 2008
News post (link)
· Ma Huaide interview on government information disclosure and its continuing challenges (link)
· Sina.com op-ed praises timely information disclosure as a powerful anti-rumor tool (link)
· People’s Daily: public interest litigation and information disclosure attempts encounter the glass door (link)
· MEP signs joint memorandum with Russians on cross-border communications and information disclosure to address future environmental emergencies (link)
November 25, 2008
News post (link)
· Legal Daily op-ed: Government should be transparent and not downplay emergency incidents (link)
· Red Net op-ed: Officials use too many many false “sensitive information” excuses (link)
· Changsha to establish three public information sites (link)
December 2, 2008
News post
· Hefei resident draws media attention for his requests of government financial information disclosure (link)
December 8, 2008
News post (link)
· China Economic Times: Government information disclosure system needs to improve (link)
· Beijing TRS to build first search engine for government information (link)
December 23, 2008
News post (link)
· Haimen institutes “one plant, one file” enterprise pollution information policy (link)
December 31, 2008
News post (link)
· Dalian moves ahead with government information network (link)
· Hangzhou Intermediate Court orders city government to fulfill open information request filed by workers seeking disclosure of the minutes of business meetings where their retirement benefits had been discussed (link)
January 5, 2009
News post (link)
· Yichun city passes interim measures for assessing government information disclosure (link)
· Chinese netizens ridicule government’s use of “top secret” to withhold documents (link)
January 14, 2009
News post (link)
· Eastern News Network Op-ed: Government should disclose financial details of stimulus package (link)
January 22, 2009
News post (link)
· Government information still hard to locate despite recent strides (link)
· Ma Huaide: Glass doors pose obstacle for proper information disclosure (link)
· Over 60% of users not satisfied with openness and accessibility of government portals (link)
February 2, 2009
News post (link)
· Guangdong Province issues order for public institutions to disclose information (link)
February 9, 2009
News post (link)
· Henan Provincial government to assess openness of its government web sites (link)
February 23, 2009
News post (link)
· Hebei province issues public information accountability measures (link)
· Zhangzhou PX plant EIA approval documents disclosed by South China Weekend News (link)
March 2, 2009
News post (link)
· NDRC offers public a request process for financial details of the stimulus plan (link)
March 9, 2009
News post (link)
· Yan Yiming re-submits full information request to NDRC for stimulus detail disclosure (link)
· CPPCC General Assembly spokesman Zhao: Internet is a crucial platform for open information disclosure (link)
March 16, 2009
News post (link)
· CPPCC members: State Secrets Act should be revised to be in line with new information disclosure law (link)
March 17, 2009
Two new open information resources (link):
· Yale Law School’s China Law Center
· Carter Center’s Chinatransparency.org
March 25, 2009
News post
· Taiyuan unveils new touchscreen-based open information terminals (link)
March 30, 2009
News post: (link)
- Ministry of public security launched annual report on information disclosure (link)
- Hunan provincial annual report on information disclosure launched (link)
- Chengdu integrated open information item into the capacity building plan (link)
April 7, 2009
News post: (link)
- Chengdu received 897 information requests in last year (link)
- Foshan received 4 information requests last year while Guangzhou received 250,000 (link)
- Sichuan summary on open information work last year (link)
- State bureau of archive annual report on information disclosure launched (link)
- State bureau of meteorology annual report on information disclosure launched (link)
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