China
Name of law: The People’s Republic of China Ordinance on Openness of Government Information
First adopted: 2007
Last modified: n/a
RTI Rating last updated: 2020-09
First adopted: 2007
Last modified: n/a
RTI Rating last updated: 2020-09
Introduction
The Open Government Information Regulations have reasonably clear procedures and some strong language on remedial measures and sanctions for individuals who do not comply with right to information obligations. However, the high level of generality in the phrasing of many provisions loses points, as does the lack of any independent oversight and appeals body. The Regulations also do not trump secrecy provisions under other laws and lack of a clear public interest override.Translation is provided by China Law Translate (https://www.chinalawtranslate.com/en/ogi2019/)
Local expert: Ben Wei
| id | Section | Points | Max score |
|---|---|---|---|
| 1 | Right of Access | 2 | 6 |
| 2 | Scope | 13 | 30 |
| 3 | Requesting Procedures | 17 | 30 |
| 4 | Exceptions & Refusal | 15 | 30 |
| 5 | Appeals | 12 | 30 |
| 6 | Sanctions & Protections | 4 | 8 |
| 7 | Promotional Measures | 12 | 16 |
| ∑ = 75 | ∑ = 150 |
| Section | I | Description | Scoring instructions | Max score | Findings | Points | Article | Comments |
|---|---|---|---|---|---|---|---|---|
1. Right of Access |
1 | The legal framework (including jurisprudence) recognises a fundamental right of access to information. | Score 0 for no constitutional right to information, 1 point for a limited constitutional right, 2 points for full constitutional recognition of a public right of access to information. | 2 | NO | 0 | Not mentioned | The Constitution, with 2018 amendments, is available here |
1. Right of Access |
2 | The legal framework creates a specific presumption in favour of access to all information held by public authorities, subject only to limited exceptions. | No=0, Partially=1, Yes=2 | 2 | Partially | 1 | 1 These Regulations are formulated so as to ensure that citizens, legal persons, and other organizations obtain government information in accordance with law, to increase the level of transparency in government work, to a rule of law government, to give full play to the role of government information in serving the public's production and livelihood and their economic and social activities. 5 Disclosure of government information by administrative organs shall adhere to disclosure being the norm and non-disclosure the exception, and observe the principles of justice, fairness, legality, and convenience for the people. 13 Except as provided in articles 14, 15, and 16 of this Regulation, government information shall be disclosed. . . 27 In addition to the government information proactively disclosed by administrative organs; citizens, legal persons, or other organizations may apply to obtain relevant government information to local people's governments at all levels, or the departments of people's governments at the county level or above that perform administrative management functions in their own name (including remote and internal bodies provided for in paragraph 2 of article 10 of this regulation). | There is some sort of presumption created although it is weak. |
1. Right of Access |
3 | The legal framework contains a specific statement of principles calling for a broad interpretation of the RTI law. The legal framework emphasises the benefits of the right to information. | One point for each characteristic. | 2 | Partially | 1 | 1 These Regulations are formulated so as to ensure that citizens, legal persons, and other organizations obtain government information in accordance with law, to increase the level of transparency in government work, to a rule of law government, to give full play to the role of government information in serving the public's production and livelihood and their economic and social activities. 19 Administrative organs shall proactively disclose government information related to adjustments of the public's interests, that require broad public understanding, or require public participation in decision making. | Discussion of benefits in Article 1 enough for 1 point. Article 19 only refers to proactive disclosure. |
2. Scope |
4 | Everyone (including non-citizens and legal entities) has the right to file requests for information. | Score 0 point if only residents/citizens; 1 point for all natural persons; 1 point for legal persons. | 2 | Partially | 1 | 27 In addition to the government information proactively disclosed by administrative organs; citizens, legal persons, or other organizations may apply to obtain relevant government information to local people's governments at all levels, or the departments of people's governments at the county level or above that perform administrative management functions in their own name (including remote and internal bodies provided for in paragraph 2 of article 10 of this regulation). | Citizens and legal persons but not foreigners |
2. Scope |
5 | The right of access applies to all material held by or on behalf of public authorities which is recorded in any format, regardless of who produced it. | Score 1-3 points if limited definition of information information such as not "internal documents" or databases excluded, 4 points for all information with no exceptions. | 4 | Partially | 2 | 2 Government information as used in these Regulations, refers to information produced or acquired by the administrative organs in the course of their performance of administrative management functions, which has been recorded or saved in some form. | Points lost because only if produced or acquired in the course of administrative management functions, which could be read narrowly. |
2. Scope |
6 | Requesters have a right to access both information and records/documents (i.e. a right both to ask for information and to apply for specific documents). | Score 1 point for only documents, 1 point for information. | 2 | YES | 2 | 2 Government information as used in these Regulations, refers to information produced or acquired by the administrative organs in the course of their performance of administrative management functions, which has been recorded or saved in some form. 29(2)(2) The applied for government information's name, document number, or other characteristic descriptions conducive to the administrative organs inquiry. | Consistently refers to information, but 29(2)(2) allows documents to be requested, so borderline but points given. |
2. Scope |
7 | The right of access applies to the executive branch with no bodies or classes of information excluded.This includes executive (cabinet) and administration including all ministries, departments, local government, public schools, public health care bodies, the police, the armed forces, security services, and bodies owned or controlled by the above. | Score 4 points for central government agencies covered: 1 for the head of state, 1 for ministries, 1 for other non-statutory agencies created by the ministries, 1 for state and local government if the government is unitary. If it´s a federalist system, 2 points for the non-statutory agencies. This can be determined by examining the length and thoroughness of the list, if such a schedule exists. Score 1 point for the archives. Add three points and deduct 1 for each exempted central agency (such as the armed forces, police, etc). | 8 | Partially | 6 | 3 All levels of people's government shall improve the organizational leadership of open government information efforts. . . 10 . . . Where remote or internal bodies established by administrative organs perform administrative management functions to the public in their own name in accordance with laws and regulations, the remote or internal bodies may be responsible for performing open government information work related to the administrative management functions they perform. 27 In addition to the government information proactively disclosed by administrative organs; citizens, legal persons, or other organizations may apply to obtain relevant government information to local people's governments at all levels, or the departments of people's governments at the county level or above that perform administrative management functions in their own name (including remote and internal bodies provided for in paragraph 2 of article 10 of this regulation). 54 These Regulations apply to open government information activities of organizations that are authorized by laws or regulations to have public affairs management functions. 55 Follow the relevant laws, regulations, and provisions of the competent State Council departments or bodies to implement disclosure of information produced or obtained by public enterprise or public institution units in the course of providing social public services in areas closely linked to the people's interests, such as education, health, water, electricity, gas, heat, environmental protection, and public transport. The competent departments for open government information work for the entire nation are to draft special provisions as required by actual conditions. | Language is not very clear and it is not clear if all non-statutory bodies or Head of State are covered. Archives are not mentioned. |
2. Scope |
8 | The right of access applies to the legislature, including both administrative and other information, with no bodies excluded. | Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all legislative branch at all levels of government | 4 | NO | 0 | N/A | |
2. Scope |
9 | The right of access applies to the judicial branch, including both administrative and other information, with no bodies excluded. | Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all judicial branch at all levels of government | 4 | NO | 0 | N/A | |
2. Scope |
10 | The right of access applies to State-owned enterprises (commercial entities that are owned or controlled by the State). | Score 1 point if some, 2 points if all | 2 | Partially | 1 | 55 Follow the relevant laws, regulations, and provisions of the competent State Council departments or bodies to implement disclosure of information produced or obtained by public enterprise or public institution units in the course of providing social public services in areas closely linked to the people's interests, such as education, health, water, electricity, gas, heat, environmental protection, and public transport. The competent departments for open government information work for the entire nation are to draft special provisions as required by actual conditions. Where public enterprises and public institutions provided for in the preceding paragraph failing to disclose information that is produced or obtained in the course of providing public services in accordance with relevant laws, regulations, and provisions of the relevant competent departments or bodies under the State Council; citizens, legal persons, or other organizations may make a collateral appeal to the relevant supervisory department or body, and departments or bodies receiving such appeals shall promptly investigate and handle them, and inform the complainant of the outcome of the handling. | Article 55 references information disclosure by public enterprises which provide social public services and seems to have some limited application, although it also states these shall be government by specialised rules. |
2. Scope |
11 | The right of access applies to other public authorities, including constitutional, statutory and oversight bodies (such as an election commission or information commission/er). | Score 1 point if some bodies, 2 points if all | 2 | Partially | 1 | 3 All levels of people's government shall improve the organizational leadership of open government information efforts. . . 10 . . . Where remote or internal bodies established by administrative organs perform administrative management functions to the public in their own name in accordance with laws and regulations, the remote or internal bodies may be responsible for performing open government information work related to the administrative management functions they perform. 27 In addition to the government information proactively disclosed by administrative organs; citizens, legal persons, or other organizations may apply to obtain relevant government information to local people's governments at all levels, or the departments of people's governments at the county level or above that perform administrative management functions in their own name (including remote and internal bodies provided for in paragraph 2 of article 10 of this regulation). 54 These Regulations apply to open government information activities of organizations that are authorized by laws or regulations to have public affairs management functions. 55 Follow the relevant laws, regulations, and provisions of the competent State Council departments or bodies to implement disclosure of information produced or obtained by public enterprise or public institution units in the course of providing social public services in areas closely linked to the people's interests, such as education, health, water, electricity, gas, heat, environmental protection, and public transport. The competent departments for open government information work for the entire nation are to draft special provisions as required by actual conditions. | Not clear but some benefit of the doubt given. |
2. Scope |
12 | The right of access applies to a) private bodies that perform a public function and b) private bodies that receive significant public funding. | 1 point for public functions, 1 point for public funding | 2 | NO | 0 | N/A | No mention of this |
3. Requesting Procedures |
13 | Requesters are not required to provide reasons for their requests. | Y/N answer 0 or 2 points | 2 | Partially | 1 | 29 . . . Applications for open government information shall include the following content: (1) The applicant's name [person or entity],proof of identification, and contact method; (2) The applied for government information's name, document number, or other characteristic descriptions conducive to the administrative organs inquiry. (3) Format requirements for applications to disclose government information, including the means and channels through which the information is to be received. 35 Where the number or frequency of applicants' applications to disclose government information clearly exceed reasonable limits, administrative organs may request that the applicants explain the reasons. Where administrative organs find that the reasons for the applications are not reasonable, they are to inform the applicant that they will not handle them; where administrative organs find that the reasons for the applications are reasonable, but that they are unable to respond to the applicants within the time provided in article 33 of this Regulation, they may determine a reasonably extended period for responding and inform the applicants. | The required information to be included in an application does not mention a reason for the request, but it is not prohibited either. The required information to be included in an application does not mention a reason for the request, but it is not prohibited either. Also, if officials believe the number or frequency of requests "clearly exceed reasonable limits" they can inquire into the reasons for the requests, and decide not to answer the request if the reasons given are not deemed reasonable. |
3. Requesting Procedures |
14 | Requesters are only required to provide the details necessary for identifying and delivering the information (i.e. some form of address for delivery). | Score Max 2 points and deduct if requesters are required to give any of the following: ID number, telephone number, residential address, etc. | 2 | Partially | 1 | 29 . . . Applications for open government information shall include the following content: (1) The applicant's name [person or entity],proof of identification, and contact method; (2) The applied for government information's name, document number, or other characteristic descriptions conducive to the administrative organs inquiry. (3) Format requirements for applications to disclose government information, including the means and channels through which the information is to be received. | Must provide name and proof of identification |
3. Requesting Procedures |
15 | There are clear and relatively simple procedures for making requests. Requests may be submitted by any means of communication, with no requirement to use official forms or to state that the information is being requested under the access to information law. | Max 2 points. Considerations include that there is no requirement to state that the request is under the RTI law, nor to use an official form, nor to identify the document being sought. | 2 | YES | 2 | Article 29: Where citizens, legal persons, or other organizations apply to obtain government information, they shall be submitted to the open government information work bodies administrative organs in written forms including letters and electronic documents; where there is truly difficulty in using a written form, the applicant may make an oral submission, and the open government information work body accepting that application is to complete an application for open government information on their behalf. Applications for open government information shall include the following content: (1) The applicant's name [person or entity],proof of identification, and contact method; (2) The applied for government information's name, document number, or other characteristic descriptions conducive to the administrative organs inquiry. (3) Format requirements for applications to disclose government information, including the means and channels through which the information is to be received. 30 Where the government information content applied for is unclear, administrative organs shall give guidance and explanations, and inform the applicant once within 7 days of receiving the application to supplement it, explaining the matters that need to be supplemented and a reasonable time for supplementing. The response period for response is calculated from the date on which administrative organs receive supplemented applications。 Where the applicant exceeds the period for corrections without legitimate reason, it is viewed as forfeiting the application, and the administrative organs are no longer to handle the that open government information request. | |
3. Requesting Procedures |
16 | Public officials are required to provide assistance to help requesters formulate their requests, or to contact and assist requesters where requests that have been made are vague, unduly broad or otherwise need clarification. | Score 1 point for help in formulation and 1 point for clarification procedures | 2 | YES | 2 | 28 Administrative organs provided for in article 27 of this Regulation shall establish and improve channels for applying for disclosure of government information, and facilitate applicants' lawfully obtaining government information. 30 Where the government information content applied for is unclear, administrative organs shall give guidance and explanations, and inform the applicant once within 7 days of receiving the application to supplement it, explaining the matters that need to be supplemented and a reasonable time for supplementing. The response period for response is calculated from the date on which administrative organs receive supplemented applications。 Where the applicant exceeds the period for corrections without legitimate reason, it is viewed as forfeiting the application, and the administrative organs are no longer to handle the that open government information request. | |
3. Requesting Procedures |
17 | Public officials are required to provide assistance to requesters who require it because of special needs, for example because they are illiterate or disabled. | Score Yes=2 point, No=0 | 2 | YES | 2 | 29(1) Where citizens, legal persons, or other organizations apply to obtain government information, they shall be submitted to the open government information work bodies administrative organs in written forms including letters and electronic documents; where there is truly difficulty in using a written form, the applicant may make an oral submission, and the open government information work body accepting that application is to complete an application for open government information on their behalf. 43 Where citizens applying for the disclosure of government information have trouble reading or have hearing or vision impediments, administrative organs shall provide them with necessary assistance. | |
3. Requesting Procedures |
18 | Requesters are provided with a receipt or acknowledgement upon lodging a request within a reasonable timeframe, which should not exceed 5 working days. | Score 1 point for receipt, 1 point for max 5 working days | 2 | NO | 0 | 31 The time of administrative organs' receipt of an open government information application is determined in accordance with the provisions listed below: (1) Where the applicant submits the open government information application in person, the date of receipt is the date of submission; (2) Where the applicant submits the open government information application by mail, the date of receipt is the date on which the administrative organ signs for receipt; where open government information applications are sent by ordinary letter or other forms of mail that do need require signatures for receipt, the open government information work bodies shall confirm with the applicant on the date it receives the application, and the date of confirmation is the date of receipt; (3) Where the applicant submits an open government information application through the internet or open government information work body's fax, the date of receipt is the date confirmed by both sides; | Some reference to confirming receipt but not a proper obligation and no time limit |
3. Requesting Procedures |
19 | Clear and appropriate procedures are in place for situations where the authority to which a request is directed does not have the requested information. This includes an obligation to inform the requester that the information is not held and to refer the requester to another institution or to transfer the request where the public authority knows where the information is held. | Score: 1 point for information not held, 1 for referrals or 2 for transfers | 2 | Partially | 1 | 36(5) Where the administrative organ is not responsible for the disclosure of the information applied for, inform the applicant and explain the reasons; where the administrative organs responsible for disclosing the government information can be determined, inform the applicant of the name and contact methods for that administrative organ. | Must inform the requester but no obligation to transfer the request |
3. Requesting Procedures |
20 | Public authorities are required to comply with requesters’ preferences regarding how they access information, subject only to clear and limited overrides (e.g. to protect a record). | Score: 2 points for Yes, only 1 point if some limitations | 2 | Partially | 1 | 40 The specific form in which government information is provided by administrative organs making disclosures of government information upon application shall be determined based on the request of the applicant and the actual conditions of the administrative organs' stored government information; where providing government information according to the applicants' requested format might endanger the security of the government information medium or the cost of disclosure would be too high, it may be provided as electronic data or in other appropriate formats, or arrangements may be made for the applicant to access and copy the relevant government information. | Limitations such as if the cost is too high are too unclear for full points |
3. Requesting Procedures |
21 | Public authorities are required to respond to requests as soon as possible. | Score: No=0, Yes=2 points | 2 | Partially | 1 | 33 Where administrative organs receiving open government information applications are able to respond at the scene, they should reply at the scene. Where administrative organs are not able to reply at the scene, they shall reply within 20 business days from receiving a request; where an extension of the time limit for replying is needed, they shall obtain the consent of the responsible person for the open government information work body and inform the applicant, the extension of the time limit must not exceed 20 business days at the longest. The time needed for administrative organs to seek the opinions of third parties and other organs is not be counted against the time limit provided in the preceding paragraph. | Obligation to reply "at the scene" if possible gets one point but not enough of a proper obligation for full points |
3. Requesting Procedures |
22 | There are clear and reasonable maximum timelines (20 working days or less) for responding to requests, regardless of the manner of satisfying the request (including through publication). | Score: 1 point for timeframes of 20 working days (or 1 month, 30 days or 4 weeks). Score 2 points for 10 working days (or 15 days, or two weeks) or less. | 2 | Partially | 1 | 33 Where administrative organs receiving open government information applications are able to respond at the scene, they should reply at the scene. Where administrative organs are not able to reply at the scene, they shall reply within 20 business days from receiving a request; where an extension of the time limit for replying is needed, they shall obtain the consent of the responsible person for the open government information work body and inform the applicant, the extension of the time limit must not exceed 20 business days at the longest. The time needed for administrative organs to seek the opinions of third parties and other organs is not be counted against the time limit provided in the preceding paragraph. 34 Where applications for disclosure are for government information jointly created by two or more administrative organs, the administrative organ that led the creation may solicit the opinions of relevant administrative organs after it receives the open government information application; and the organs whose opinions are being solicited are to submit comments within 15 working days of receiving the written solicitation of opinions, where comments are not submitted within the time provided, it is viewed as consent to disclosure. 32 Where disclosure of open government information by application will harm the lawful rights and interests of third parties, administrative organs shall solicit the opinions of the third parties in writing. Third parties shall submit comments within 15 working days of receiving the written solicitation of opinions. . . . | 20 working days in general, but this does not include the time for consulting with other agencies or third parties (who have 15 working days to respond) |
3. Requesting Procedures |
23 | There are clear limits on timeline extensions (20 working days or less), including a requirement that requesters be notified and provided with the reasons for the extension. | - | 2 | Partially | 1 | 33 . . . Where administrative organs are not able to reply at the scene, they shall reply within 20 business days from receiving a request; where an extension of the time limit for replying is needed, they shall obtain the consent of the responsible person for the open government information work body and inform the applicant, the extension of the time limit must not exceed 20 business days at the longest. 35 Where the number or frequency of applicants' applications to disclose government information clearly exceed reasonable limits, administrative organs may request that the applicants explain the reasons. Where administrative organs find that the reasons for the applications are not reasonable, they are to inform the applicant that they will not handle them; where administrative organs find that the reasons for the applications are reasonable, but that they are unable to respond to the applicants within the time provided in article 33 of this Regulation, they may determine a reasonably extended period for responding and inform the applicants. | Extensions limited to 20 working days and must give notice, but no requirement to give reason for extension |
3. Requesting Procedures |
24 | It is free to file requests. | Score: No=0, Yes=2 points | 2 | YES | 2 | 42 Administrative organs providing government information upon application are not to collect fees. However, where the number or frequency of applicants' applications to disclose government information clearly exceed reasonable limits, administrative organs may collect fees for handling the information. Specific measures on administrative organs collection of information handling fees are to be drafted by the State Council departments for pricing together with the State Council finance departments, and the departments in charge of open government information for the entire nation. | Officials should not collect fees except for information handling when a high frequency of requests |
3. Requesting Procedures |
25 | There are clear rules relating to access fees, which are set centrally, rather than being determined by individual public authorities. These include a requirement that fees be limited to the cost of reproducing and sending the information (so that inspection of documents and electronic copies are free) and that a certain initial number of pages (at least 20) are provided for free. | Score 1 point for fees being limited to reproduction and delivery costs and set centrally, 1 point for at least 20 pages free of charge or for fees being optional | 2 | Partially | 1 | 42 Administrative organs providing government information upon application are not to collect fees. However, where the number or frequency of applicants' applications to disclose government information clearly exceed reasonable limits, administrative organs may collect fees for handling the information. Specific measures on administrative organs collection of information handling fees are to be drafted by the State Council departments for pricing together with the State Council finance departments, and the departments in charge of open government information for the entire nation. | Generally free, but fees may apply when number or frequency of applications "clearly exceed reasonable limits" -- enough for one point, but no full points because of lack of clear limits when the possibility of fees is triggered |
3. Requesting Procedures |
26 | There are fee waivers for impecunious requesters. | - | 2 | Partially | 1 | 42 Administrative organs providing government information upon application are not to collect fees. However, where the number or frequency of applicants' applications to disclose government information clearly exceed reasonable limits, administrative organs may collect fees for handling the information. Specific measures on administrative organs collection of information handling fees are to be drafted by the State Council departments for pricing together with the State Council finance departments, and the departments in charge of open government information for the entire nation. | Generally there are no fees so mostly impecunious requesters get information for free. But not always so not enough to earn the full two points. |
3. Requesting Procedures |
27 | There are no limitations on or charges for reuse of information received from public bodies, except where a third party (which is not a public authority) holds a legally-protected copyright over the information. | Score: No=0, Yes=2 points | 2 | NO | 0 | N/A | Not mentioned |
4. Exceptions & Refusal |
28 | The standards in the RTI Law trump restrictions on information disclosure (secrecy provisions) in other legislation to the extent of any conflict. | Score 4 points for a resounding "yes" and 1/2/3 points if only for some classes of information or for some exceptions. If the state secrets law is not trumped by the RTI law max score is 2 points. | 4 | NO | 0 | 14 Government information that is lawfully designated as state secrets, government information that laws and regulations prohibit disclosure of, as well as government information that might endanger national security, public safety, economic security, or social stability after release, is not to be disclosed. 17 ... Administrative organs disclosing government information shall conduct a review of the government information to be disclosed in accordance with the "People's Republic of China State Secrets Law", as well other laws, regulations, and relevant State provisions, Where administrative organs cannot determine whether government information may be disclosed, they shall follow laws, regulations, and relevant State provisions to report to the relevant competent department, or the administrative department for secrecy management, for a confirmation. | |
4. Exceptions & Refusal |
29 | The exceptions to the right of access are consistent with international standards. Permissible exceptions are: national security; international relations; public health and safety; the prevention, investigation and prosecution of legal wrongs; privacy; legitimate commercial and other economic interests; management of the economy; fair administration of justice and legal advice privilege; conservation of the environment; and legitimate policy making and other operations of public authorities. | Score 10 points and then deduct 1 point for each exception which either (a) falls outside of this list and/or (b) is more broadly framed | 10 | Partially | 6 | 14 Government information that is lawfully designated as state secrets, government information that laws and regulations prohibit disclosure of, as well as government information that might endanger national security, public safety, economic security, or social stability after release, is not to be disclosed. 15 Administrative organs must not disclose government information involving commercial secrets or personal privacy, for which disclosure would cause harm to the lawful rights and interests of third parties. However, it is to be disclosed where the third parties consent or where the administrative organ finds that nondisclosure will create a major impact on the public interest. 16 Information on matters internal to administrative organs, including personnel management, logistics management, internal work processes, and information in other such areas, may be not disclosed. Deliberation records, process drafts, consultation letters, requests for instruction, and other such process type information, as well as administrative law enforcement case files, may be not disclosed. Where laws, regulations, and or rules provide that the information above shall be disclosed, follow those provisions. 17 Administrative organs shall establish and complete mechanisms for review of open government information, clarifying the procedures and responsibility for review. Administrative organs disclosing government information shall conduct a review of the government information to be disclosed in accordance with the "People's Republic of China State Secrets Law", as well other laws, regulations, and relevant State provisions, Where administrative organs cannot determine whether government information may be disclosed, they shall follow laws, regulations, and relevant State provisions to report to the relevant competent department, or the administrative department for secrecy management, for a confirmation. 35. Where the number or frequency of applicants' applications to disclose government information clearly exceed reasonable limits, administrative organs may request that the applicants explain the reasons. Where administrative organs find that the reasons for the applications are not reasonable, they are to inform the applicant that they will not handle them; where administrative organs find that the reasons for the applications are reasonable, but that they are unable to respond to the applicants within the time provided in article 33 of this Regulation, they may determine a reasonably extended period for responding and inform the applicants. | Points lost for social stability, economic security, excessive number of requests and internal matters |
4. Exceptions & Refusal |
30 | A harm test applies to all exceptions, so that it is only where disclosure poses a risk of actual harm to a protected interest that it may be refused. | Score 4 points and then deduct 1 point for each exception which is not subject to the harm test | 4 | Partially | 2 | 14 Government information that is lawfully designated as state secrets, government information that laws and regulations prohibit disclosure of, as well as government information that might endanger national security, public safety, economic security, or social stability after release, is not to be disclosed. 15 Administrative organs must not disclose government information involving commercial secrets or personal privacy, for which disclosure would cause harm to the lawful rights and interests of third parties. However, it is to be disclosed where the third parties consent or where the administrative organ finds that nondisclosure will create a major impact on the public interest. 16 Information on matters internal to administrative organs, including personnel management, logistics management, internal work processes, and information in other such areas, may be not disclosed. Deliberation records, process drafts, consultation letters, requests for instruction, and other such process type information, as well as administrative law enforcement case files, may be not disclosed. Where laws, regulations, and or rules provide that the information above shall be disclosed, follow those provisions. 17 Administrative organs shall establish and complete mechanisms for review of open government information, clarifying the procedures and responsibility for review. Administrative organs disclosing government information shall conduct a review of the government information to be disclosed in accordance with the "People's Republic of China State Secrets Law", as well other laws, regulations, and relevant State provisions, Where administrative organs cannot determine whether government information may be disclosed, they shall follow laws, regulations, and relevant State provisions to report to the relevant competent department, or the administrative department for secrecy management, for a confirmation. | Points lost for the weak harm test in Article 14 ('might endanger') and law enforcement which is not harm tested. |
4. Exceptions & Refusal |
31 | There is a mandatory public interest override so that information must be disclosed where this is in the overall public interest, even if this may harm a protected interest. There are ‘hard’ overrides (which apply absolutely), for example for information about human rights, corruption or crimes against humanity. | Consider whether the override is subject to overarching limitations, whether it applies to only some exceptions, and whether it is mandatory. | 4 | Partially | 1 | 15 Administrative organs must not disclose government information involving commercial secrets or personal privacy, for which disclosure would cause harm to the lawful rights and interests of third parties. However, it is to be disclosed where the third parties consent or where the administrative organ finds that nondisclosure will create a major impact on the public interest. 32 Where disclosure of open government information by application will harm the lawful rights and interests of third parties, administrative organs shall solicit the opinions of the third parties in writing. Third parties shall submit comments within 15 working days of receiving the written solicitation of opinions. Where third parties do not submit comments in the time provided, the administrative organs are to decide whether to disclose in accordance with the provisions of this Regulation. Where third parties do not consent to disclosure and have a reasonable reason, the administrative organs are not to disclose. Where administrative organs find that non-disclosure might have a major impact on public interests, the may decide to disclose, and inform third parties in writing of the content and grounds for the decision to disclose the government information. | Only a limited, non-mandatory override available for commercial secrets and personal privacy |
4. Exceptions & Refusal |
32 | Information must be released as soon as an exception ceases to apply (for example, after a contract tender process decision has been taken). The law contains a clause stating that exceptions to protect public interests do not apply to information which is over 20 years old. | Score 1 point for each | 2 | Partially | 1 | 18 Administrative organs shall establish and complete dyamically adjusting government information management mechanisms, carrying out periodic assessment and review of information from that administrative organ which was not disclosed, and government information which may be disclosed due to changing circumstances shall be disclosed. | Not a proper system but enough for 1 point |
4. Exceptions & Refusal |
33 | Clear and appropriate procedures are in place for consulting with third parties who provided information which is the subject of a request on a confidential basis. Public authorities shall take into account any objections by third parties when considering requests for information, but third parties do not have veto power over the release of information. | Score: 1 point for consultation, 1 further point if original time frames must be respected and the law allows for expedited appeals. | 2 | YES | 2 | 32 Where disclosure of open government information by application will harm the lawful rights and interests of third parties, administrative organs shall solicit the opinions of the third parties in writing. Third parties shall submit comments within 15 working days of receiving the written solicitation of opinions. Where third parties do not submit comments in the time provided, the administrative organs are to decide whether to disclose in accordance with the provisions of this Regulation. Where third parties do not consent to disclosure and have a reasonable reason, the administrative organs are not to disclose. Where administrative organs find that non-disclosure might have a major impact on public interests, the may decide to disclose, and inform third parties in writing of the content and grounds for the decision to disclose the government information. 33 . . . The time needed for administrative organs to seek the opinions of third parties and other organs is not be counted against the time limit provided in the preceding paragraph. 34 Where applications for disclosure are for government information jointly created by two or more administrative organs, the administrative organ that led the creation may solicit the opinions of relevant administrative organs after it receives the open government information application; and the organs whose opinions are being solicited are to submit comments within 15 working days of receiving the written solicitation of opinions, where comments are not submitted within the time provided, it is viewed as consent to disclosure. | |
4. Exceptions & Refusal |
34 | There is a severability clause so that where only part of a record is covered by an exception the remainder must be disclosed. | Score 1 point if yes but sometimes can be refused (eg: if deletions render meaningless the document) and 2 points if partial access must always be granted | 2 | YES | 2 | 37 Where applications for disclosure of information include content that shall not be disclosed or that is not government information, but it can be distinguished, the administrative organ shall provide the applicant with the government information content that can be disclosed, and explain the reasons for the non-disclosed content. | |
4. Exceptions & Refusal |
35 | When refusing to provide access to information, public authorities must a) state the exact legal grounds and reason(s) for the refusal and b) inform the applicant of the relevant appeals procedures. | Score Y/N: 1 point for a and 1 point for b | 2 | Partially | 1 | 36(3) Where administrative organs decide not to disclose on the basis of this Regulation, they are to inform the applicants of the reason for not disclosing; Interpretation of the Supreme People's Court on the Application of the Administrative Litigation Law, Article 64, stipulates that where an administrative organ makes an administrative act without informing a citizen, legal person or other organization of the time limit for prosecution, the time limit for prosecution shall be calculated from the date on which the citizen, legal person or other organization knows or should know the time limit for prosecution. | No requirement to inform of the possibility of appeal. Where this is not done, the time limits for a court appeal may be extended, but this is not the same thing. |
5. Appeals |
36 | The law offers an internal appeal which is simple, free of charge and completed within clear timelines (20 working days or less). | Score 2 points if the internal appeal fulfills these criteria, 1 point if an appeal is offered that does not fulfill this criteria, 0 for no internal appeals. | 2 | YES | 2 | 47 . . . Where citizens, legal persons, or other organizations find that administrative organs have not followed requirements to proactively disclose government information or do not lawfully respond to and handle open government information applications, they may submit it to the competent departments for open government information work. Where the competent departments for open government information work investigate and find it is true, they shall urge corrections or circulate criticism. 51 Where citizens, legal persons, or other organizations find that administrative organs have violated their lawful rights and interests during open government information work, they may make a complaint or report to the administrative organ at the level above or the competent department for open government information work, and may also lawfully apply for an administrative reconsideration or initiate administrative litigation. | |
5. Appeals |
37 | Requesters have the right to lodge an (external) appeal with an independent administrative oversight body (e.g. an information commission or ombudsman). | 1 for partial, 2 for yes | 2 | NO | 0 | N/A | |
5. Appeals |
38 | The member(s) of the oversight body are appointed in a manner that is protected against political interference and have security of tenure so that they are protected against arbitrary dismissal (procedurally/substantively) once appointed. | Score: 1 point for appointment procedure, 1 point for security of tenure | 2 | NO | 0 | N/A | |
5. Appeals |
39 | The oversight body reports to and has its budget approved by the parliament, or other effective mechanisms are in place to protect its financial independence. | Score 1 point for reports to parliament, 1 point for budget approved by parliament | 2 | NO | 0 | N/A | |
5. Appeals |
40 | There are prohibitions on individuals with strong political connections from being appointed to this body and requirements of professional expertise. | Score 1 point for not politically connected, 1 point for professional expertise | 2 | NO | 0 | N/A | |
5. Appeals |
41 | The independent oversight body has the necessary mandate and power to perform its functions, including to review classified documents and inspect the premises of public bodies. | Score 1 point for reviewing classified documents, 1 point for inspection powers | 2 | NO | 0 | N/A | |
5. Appeals |
42 | The decisions of the independent oversight body are binding. | Score N=0, Y=2 points | 2 | NO | 0 | N/A | |
5. Appeals |
43 | In deciding an appeal, the independent oversight body has the power to order appropriate remedies for the requester, including the declassification of information. | 1 for partial, 2 for fully | 2 | NO | 0 | N/A | |
5. Appeals |
44 | Requesters have the right to lodge a judicial appeal. | 1 for partially, 2 for fully. | 2 | YES | 2 | 51 Where citizens, legal persons, or other organizations find that administrative organs have violated their lawful rights and interests during open government information work, they may make a complaint or report to the administrative organ at the level above or the competent department for open government information work, and may also lawfully apply for an administrative reconsideration or initiate administrative litigation. | mentions administrative litigation |
5. Appeals |
45 | Appeals to the oversight body (where applicable, or to the judiciary if no such body exists) are free of charge and do not require legal assistance. | 1 for free, 1 for no lawyer required. | 2 | Partially | 1 | N/A | Not free, but can reportedly be done without a lawyer |
5. Appeals |
46 | The grounds for an external appeal are broad (including not only refusals to provide information but also refusals to provide information in the form requested, administrative silence and other breach of timelines, charging excessive fees, etc.). | Score 1 point for appealing refusals, additional points for appealing other violations. | 4 | YES | 4 | 51 Where citizens, legal persons, or other organizations find that administrative organs have violated their lawful rights and interests during open government information work, they may make a complaint or report to the administrative organ at the level above or the competent department for open government information work, and may also lawfully apply for an administrative reconsideration or initiate administrative litigation. 1 of the Supreme Court's Several Issues Related to the Trial of Open Government Information Cases: Where a citizen, a legal person or any other organization deems that any of the following specific administrative acts related to open government information has infringed upon the legal rights and interests of the citizen, legal person or organization and files an administrative lawsuit according to law, the people's court shall accept such a lawsuit: 1. A citizen, a legal person or any organization applies to an administrative organ for access to government information, but the administrative organ refuses to provide such information or fails to give a reply within the prescribed time limit. 2. A citizen, a legal person or any organization deems that the government information provided by an administrative organ is not the information requested in the application or is not in a proper form prescribed by law or regulation. 3. A citizen, a legal person or any organization deems that the open government information provided by an administrative organ voluntarily or upon application of any other person has infringed upon any trade secret or personal privacy of the citizen, legal person or organization. 4. A citizen, a legal person or any organization deems that the government information on the citizen, legal person or organization provided by an administrative organ is inaccurate and therefore requests the administrative organ to make correction, but the administrative organ refuses to make correction, fails to give a reply within the prescribed time limit or fails to transfer the request to the competent organ for handling. 5. A citizen, a legal person or any organization deems that any other specific administrative act related to open government information of an administrative organ has infringed upon the legal rights and interests of the citizen, legal person or organization. Where a citizen, a legal person or any other organization deems that any administrative act related to open government information has infringed upon the legal rights and interests of the citizen, legal person or organization and caused any damage, the citizen, legal person or organization may concurrently or separately file an administrative compensation lawsuit. | Article 1 of the Supreme Court's Several Issues Related to the Trial of Open Government Information Cases |
5. Appeals |
47 | Clear procedures, including timelines, are in place for dealing with external appeals. | Score 1 point for clear procedures, 1 point for timelines. | 2 | NO | 0 | N/A | |
5. Appeals |
48 | In the appeal process, the government bears the burden of demonstrating that it did not operate in breach of the rules. | Score Y/N and award 2 points for yes. | 2 | YES | 2 | Administrative Litigation Law, Article 34, provides that the defendant bears the burden of proof for an administrative act. | |
5. Appeals |
49 | The external appellate body has the power to impose appropriate structural measures on the public authority (e.g. to conduct more training or to engage in better records management) | 1 for partial, 2 for fully. | 2 | Partially | 1 | 47 The competent departments for open government information work shall strengthen routing guidance and supervisory inspections of open government information work, and where administrative organs have not carried out open government information efforts as required, urge rectification or circulate criticism; where it is necessary to pursue accountability of the responsible leaders and directly responsible personnel, a recommendation on handling is to be submitted to an authorized organ in accordance with law. . . 52 Where administrative organs violate the provisions of these Regulations by failing to establish and complete relevant systems and mechanisms for open government information, the administrative organ at the level above is responsible for ordering corrections; where the circumstances are serious, the leaders with responsibility and directly responsible personnel are given sanctions in accordance with law. 53 In any of the following circumstances, where administrative organs violate the provisions of these Regulations, the administrative organ at the level above is to order corrections; and where the circumstances are serious the leaders with responsibility and directly responsible personnel are given sanctions in accordance with law; and where a crime is constituted, criminal responsibility is pursued in accordance with law. (1) Not performing open government information functions in accordance with law; (2) Not promptly updating the contents of government information that has been disclosed, the open government information handbook, and the open government information catalog; (3) Other circumstances violating the provisions of this Regulation. | Remedial powers specified but only one point given because they are not imposed by an external body |
6. Sanctions & Protections |
50 | Sanctions may be imposed on those who wilfully act to undermine the right to information, including through the unauthorised destruction of information. | Score 1 point for sanctions for underming right, 1 point for destruction of documents | 2 | Partially | 1 | 52 Where administrative organs violate the provisions of these Regulations by failing to establish and complete relevant systems and mechanisms for open government information, the administrative organ at the level above is responsible for ordering corrections; where the circumstances are serious, the leaders with responsibility and directly responsible personnel are given sanctions in accordance with law. 53 In any of the following circumstances, where administrative organs violate the provisions of these Regulations, the administrative organ at the level above is to order corrections; and where the circumstances are serious the leaders with responsibility and directly responsible personnel are given sanctions in accordance with law; and where a crime is constituted, criminal responsibility is pursued in accordance with law. (1) Not performing open government information functions in accordance with law; (2) Not promptly updating the contents of government information that has been disclosed, the open government information handbook, and the open government information catalog; (3) Other circumstances violating the provisions of this Regulation. | General power to sanction but not very clear; no specific mention of destroying documents |
6. Sanctions & Protections |
51 | There is a system for redressing the problem of public authorities which systematically fail to disclose information or underperform (either through imposing sanctions on them or requiring remedial actions of them). | Score 1 point for either remedial action or sanctions, 2 points for both | 2 | Partially | 1 | 52. Where administrative organs violate the provisions of these Regulations by failing to establish and complete relevant systems and mechanisms for open government information, the administrative organ at the level above is responsible for ordering corrections; where the circumstances are serious, the leaders with responsibility and directly responsible personnel are given sanctions in accordance with law. 53. In any of the following circumstances, where administrative organs violate the provisions of these Regulations, the administrative organ at the level above is to order corrections; and where the circumstances are serious the leaders with responsibility and directly responsible personnel are given sanctions in accordance with law; and where a crime is constituted, criminal responsibility is pursued in accordance with law. (1) Not performing open government information functions in accordance with law; (2) Not promptly updating the contents of government information that has been disclosed, the open government information handbook, and the open government information catalog; (3) Other circumstances violating the provisions of this Regulation. | "ordering corrections" but no organisational sanctions (the sanctions are for individuals) |
6. Sanctions & Protections |
52 | The independent oversight body and its staff are granted legal immunity for acts undertaken in good faith in the exercise or performance of any power, duty or function under the RTI Law. Others are granted similar immunity for the good faith release of information pursuant to the RTI Law. | Score 1 for oversight body, 1 for immunity for others | 2 | NO | 0 | N/A | |
6. Sanctions & Protections |
53 | There are legal protections against imposing sanctions on those who, in good faith, release information which discloses wrongdoing (i.e. whistleblowers). | Score 2 for strong protections, 1 for moderate protections | 2 | YES | 2 | N/A | Not mentioned in the Open Government Information Regulations, but protections in other laws, like the Rules of the People’s Procuratorates on Whistleblowing Work (SPP Rules), enough for points here |
7. Promotional Measures |
54 | Public authorities are required to appoint officials (information officers) or units with dedicated responsibilities for ensuring that they comply with their information disclosure obligations. | Score Y/N, Y=2 points | 2 | YES | 2 | 4. All levels of people's government, as well as departments of people's governments at the county level or above, shall establish and complete systems for open government information efforts in that administrative organ, and designate bodies (hereinafter "open government information work bodies") responsible for routine open government information work. The specific functions of open government information work bodies are: (1) To handle that administrative organ's open government information matters; (2) Preserving and updating the government information disclosed by that administrative organ; (3) Organizing the drafting of that administrative organ's open government information handbook, catalog of open government information, and annual report on open government information efforts; (4) Organizing implementation of reviews of government information to be disclosed; (5) Other functions related to open government information that that administrative organ provides. | Open government work bodies appear to have broad responsibility for implementation; its not clear they process requests but this is still enough for full points. |
7. Promotional Measures |
55 | A central body, such as an information commission(er) or government department, is given overall responsibility for promoting the right to information. | Score Y/N, Y=2 points | 2 | YES | 2 | 3 . . . All levels of people's government, as well as departments of people's governments at the county level or above, shall establish and complete systems for open government information efforts in that administrative organ, and designate bodies (hereinafter "open government information work bodies") responsible for routine open government information work. The specific functions of open government information work bodies are: (1) To handle that administrative organ's open government information matters; (2) Preserving and updating the government information disclosed by that administrative organ; (3) Organizing the drafting of that administrative organ's open government information handbook, catalog of open government information, and annual report on open government information efforts; (4) Organizing implementation of reviews of government information to be disclosed; (5) Other functions related to open government information that that administrative organ provides. | |
7. Promotional Measures |
56 | Public awareness-raising efforts (e.g. producing a guide for the public or introducing RTI awareness into schools) are required to be undertaken by law. | Score Y/N, Y=2 points | 2 | Partially | 1 | 7 All levels of people's government shall actively promote open government information efforts and gradually increase the scope of open government information. 12 Open government information handbooks and open government information catalogs drafted and published by administrative organs shall be promptly updated. The open government information handbooks are to include the types, arrangement systems, and methods for obtaining government information, and the open government information work bodies' name, address, work hours, contact number, fax number, internet contact methods, and other relevant content. Open government information catalogs are to include the index, titles, content summaries, and production dates and other such information on government information. | 1 point for the handbooks, but alone not enough for full points |
7. Promotional Measures |
57 | A system is in place whereby minimum standards regarding the management of records are set and applied. | Score Y/N, Y=2 points | 2 | Partially | 1 | 8. All levels of people's government shall strengthen regulation, standardization, and information management of government information resources; strengthen the establishment of internet open government information platforms; advance the integration of open government information platforms and government affairs service platforms, and raise the level of online handling of open government information. | Article 8 references standardising information management but does not clearly require minimum records management standards. However, to implement Article 8, the General Office of the State Council issued a Guidance on Comprehensively Promoting the Standardization of Open Government Affairs at the Grassroots Level which sets standards for good records management |
7. Promotional Measures |
58 | Public authorities are required to create and update lists or registers of the documents in their possession, and to make these public. | Score Y/N, Y=2 points | 2 | YES | 2 | 12 Open government information handbooks and open government information catalogs drafted and published by administrative organs shall be promptly updated. The open government information handbooks are to include the types, arrangement systems, and methods for obtaining government information, and the open government information work bodies' name, address, work hours, contact number, fax number, internet contact methods, and other relevant content. Open government information catalogs are to include the index, titles, content summaries, and production dates and other such information on government information. | |
7. Promotional Measures |
59 | Training programs for officials are required to be put in place. | Score Y/N, Y=2 points | 2 | YES | 2 | 48 The competent departments for open government information work shall periodically conduct training for the administrative organs' open government information work staff. | To implement the OGI Regulations, the General Office of the State Council issued a Detailed Rules for the Implementation of the Opinions on the Comprehensive Promotion of Open Government Affairs in late 2016 which requires development of a training program in detail. Not only providing training for FOI officials, but also for leaders and other public servants. In addition, the General Office's annual FOI plan always mentions FOI training affairs. |
7. Promotional Measures |
60 | Public authorities are required to report annually on the actions they have taken to implement their disclosure obligations. This includes statistics on requests received and how they were dealt with. | Score Y/N, Y=2 points | 2 | YES | 2 | 49 By January 31 of each year, the departments of people's government at the county level or above shall submit the preceding year's annual open government information work report to the competent department for open government information work of that level, and release it to the public. By March 31 of each year, the competent departments for open government information work of local people's governments at the county level or above shall publicly release the preceding year's annual open government information work report for that level of government. 50The annual reports on open government information work shall include the following content: (1) Circumstances of the administrative organ's proactive disclosure of government information; (2) Circumstances of the administrative organ's receipt and handling of open government information applications; (3) Circumstances of being subject to an application for administrative reconsideration or administrative lawsuit due to open government information work; (4) The main problems that exist in open government information work and circumstances of improving them, and each level of people's governments' annual report on open government information work shall also include work evaluations, public assessment, and circumstances of pursuing responsibility and their outcomes. (5) Other matters that need to be reported. The competent department for open government information work across the nation shall release a uniform format for annual work reports and update it when appropriate. | |
7. Promotional Measures |
61 | A central body, such as an information commission(er) or government department, has an obligation to present a consolidated report to the legislature on implementation of the law. | Score Y/N, Y=2 points | 2 | NO | 0 | N/A |
