The Regulations on Open Government Information (ROGI), coming into effect on 1st May 2008, entitle Chinese citizens to access the information held by government agencies at all levels. The public hence expect that a freedom of information (FOI) like regime has been eventually established in China, and citizens actively seek judicial remedies when they find the general right of access to information is denied by administrative authorities. However, through the analysis of 169 FOI lawsuits adjudicated since the implementation of the ROGI, this paper shows that the judicial protection of access right is both inactive and inadequate. On the one hand, the judges tend to preclude most FOI disputes outside the court by means of narrowing down the scope of judicial review and maintaining a high threshold of standing; on the other hand, they are inclined to grant great latitude to administrative authorities in their handlings of FOI applications, which is shown in the judicial deference to inferior norms of secrecy as well as the lax control of administrative discretion in public interest test concerning the exemption clauses of the ROGI. The paper highlights that, unlike the courts in many democracies with FOI legislation, the Chinese courts insist on the need base of the access to information which is not explicitly required by the ROGI. Therefore, they only recognize an access right that is subordinate to the protection of an individual’s property or personal right, and negate the role that the access right could have played in promoting democratic supervision of government and public participation in policy making. At last, the paper finds that the conservative stance of the courts can be ascribed to not only the vagueness in the ROGI, but also the judges’ misunderstandings of legal concepts borrowed from European jurisdictions, and the ideology of “maintaining the societal stability” that prevails within the judicial system as well.
Available at: http://works.bepress.com/clement_chen/4/