Freedom of Information and Environmental Protection in China
This post first appeared on WRI Earth Trends. July 28, 2008.
On May 1, 2008, the Regulations on Government Disclosure of Information officially took effect, making China one of 70 countries worldwide that has enacted comprehensive freedom of information(FOI) legislation. The objective of the Chinese regulation specifically is "to ensure that citizens, legal persons and other organizations can obtain government information by lawful means and increase government transparency.
While this new FOI legislation covers all branches of government, the environmental aspects will be enforced by the Ministry of Environmental Protection through its Measures on Open Environmental Information, which took effect the same day. Disclosed environmental information ranges from government laws, regulations, and standards to plans, statistics, and other government service information, including "environmental quality status" information and lists of China's most polluting businesses.
The "access right" or "right to know" (知情权) is one of the most important rights with which people are endowed, says Jia Feng (贾峰), deputy director of the Center for Environmental Education and Communication. Mr. Jia, who also serves as editor-in-chief of World Environment Magazine, stresses that gaining access to crucial information will make it possible for the public to know if their environmental rights are being violated, and will allow the public to protect their legal rights, both of which should be guaranteed by government institutions. Furthermore, improved access to information will mean more transparent and predictable government decision-making.
China has some past experience with increasing access to environmental information, specifically air-quality data for major cities. Initially, the idea of releasing air quality information to the public met with strong opposition, as it was feared that such a move would threaten cities' images and social stability. However, some far-sighted leaders insisted on releasing this information in the form of weekly reports for large cities; today, daily reports are available for both large and small cities. Now, anyone in China can access a city's air quality index in publicly available reports. Air-quality measurements have become an important indicator of urban environmental quality in China, and monitoring systems were built and improved in the process.
These air-quality indices have also catalyzed the government to act to improve air quality. For instance, the city of Beijing has promised its residents many days of "blue skies" and has invested more than 140 billion RMB ($20.4 billion) to this effect – not just for the upcoming "Green" Olympics, but for the long-term benefit of its citizens.
Challenges for Information Disclosure
The Chinese government may lack the capacity to fully implement this new FOI legislation. There was a nearly one-year time lag between the passage of the new regulation in 2007 and its implementation this past May, which should have provided all levels of government enough time to prepare. But the geographic disparity of development in China means that some more rural regions may still lack the capacity to prepare for and/or implement the regulations. In addition, the availability and reliability of data is still problematic due to inconsistent collecting and reporting standards and institutional change in different levels of government.
Mr. Jia worries that funding and technology will also be a challenge. Full implementation of the law requires new technology and communication tools to make information easy to access. China's more than 2,000 counties serve as the basic units of data collection and information management, but resources to support their full implementation of the new regulation are still needed. Jia hopes that one day, both the governor and the public can check environmental information online easily, quickly, and transparently.
In the past, the notion of "state secrets" has sometimes been used as an excuse to keep information from the public. New FOI regulations may cause conflict with past practices; specifically, the 1989 Law of the People's Republic of China on Guarding State Secrets will need to be modified to take the new regulations into account. Yu Jie (喻捷), the China program advisor for the Heinrich Boell Foundation, proposes that there should be a clear list of state secrets. Borderline cases could be decided upon by a committee of stakeholders from the government, the private sector, and the public at large.
Finally, it is still not clear how strictly the government will enforce these new regulations. Departments and companies will not willingly provide information if it may harm their political or financial interests. For example, soon after the new law was passed, three scholars from Peking University requested information from the Beijing Development and Reform Commission. They wanted the commission to disclose how the toll fee on Beijing Capital Airport Expressway was being used; they felt it was unreasonable to continue to charge a toll after the investment to build the highway had paid back. The case is still pending, but it demonstrates both existing barriers to change and the potential for the new law to give the public a tool to demand government accountability.
Public Participation and Civil Society Involvement
Increased access to information will help to foster civil society in China. Ma Jun (马军), director of the Institute of Public and Environment Affairs and creator of China's first national, public water pollution database, thinks the new measure will allow NGOs to further expose businesses violating environmental standards. His organization is refining its water and air pollution database so that businesses and the public can update their own corporate discharge data sheets. This new data will allow the public to compare the volume of discharge by listed polluters and will provide a powerful tool for the public's right to know the activities of the companies.
However, many citizens do not always know how environmental degradation impacts their life. In Ms. Yu's observation, most information requests come from organizations aiming to protect the public interest; the average citizen does not even try to access information unless they have been directly impacted by environmental degradation. In order to help the public see the links between environmental policy and their quality of life, Ms.Yu co-founded the Chinese Climate Action Network (CCAN) with other NGOs in Beijing. Information sharing is one of the ways CCAN promotes joint action on the climate crisis.
Chang Tianle (常天乐), a Chinese graduate student in International Affairs at the New School, used to write for China Development Brief, a Beijing-based independent publication reporting on China's civil society, foreign aid and social development issues. She thinks the new FOI regulation will be a very good learning process both for the government and the civil society. Indeed, NGOs and activists could use the new regulation as a tool to engage government in a more strategic and constructive way to improve the situation beyond criticizing and confronting the government. In this sense, the new regulation opens a space to test the government's openness and accountability, as well as civil society's capacity to advocate and influence the government.
Civil society in China is already making use of the new FOI regulations in the private sector. In June 2008, Greenpeace China urged several multinational corporations, including the BASF group, to "stop the use of double standards and disclose to the public all environmental information." BASF, a German chemical company, publishes information about contamination discharges in countries like Germany, the United States and Canada, but not in China. Larger companies in major industrial sectors will be the first businesses to be urged to open. If the new laws will be enforced as strictly as expected, these companies' demonstrated experience with implementation will also help to create a platform for corporate social responsibility.
Information Disclosure Opens the Window
China's entry into the WTO has made it in a center of globalization. According to the General Agreement on Trade in Services, Article III, "introduction of any new, or any changes to existing, laws, regulations or administrative guidelines which significantly affect trade in services" should be informed to each member. China is learning to adopt international practices (国际接轨) while preserving a distinct Chinese character. In its long march to governmental reform and societal transformation, China still has a distance to travel, but increasing information disclosure is simply extending a reform that has already experiencing for three decades.
C. H. Tung (董建华), former Chief Executive of the Hong Kong Special Administration Region, stressed at the Fourth Annual China Symposium that "there is no way back" to controlling information as it was controlled in previous decades. He noted that "if you take one picture of China, it may not good, but if you put all pictures together, it's a moving story." Given this changing background, he stressed, China now has more than 200 million "netizens," and 500 million mobile-phone users; although the government still has some restrictions on web content, it's impossible to control all information anymore.
The recent "Tiger Zhou" (周老虎) scandal – when Chinese Internet users discredited a photo apparently taken of an endangered tiger and released by a government forestry agency – is an example of these new dynamics of information access. The government learned the lesson that it cannot succeed if it attempts control the flow of information. It is also a good example of how public can make a difference only if the information is open. The widespread use of information tools is part of a story of increasing awareness of the "people’s right," which has become the biggest driver for more transparent, accountable, and equitable governance.
The law is in effect, and the Chinese environmental community is optimistic about its potential ramifications. Media and public commentaries on the new rules show it is potentially of historical significance, reversing previous procedures in which the government was reluctant to release information. A public "right to know" has now been legally established. Government agencies are now responsible for disclosing information and are mandated to set up systems that will create a "government under the sunshine" (阳光政府).