Mei Gechlik. DAI Di. Guiding Case No. 26 and China s Open Government Information System

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1 Mei Gechlik Founder and Director, China Guiding Cases Project DAI Di Attorney, Beijing Haijia Law Firm Guiding Case No. 26 and China s Open Government Information System CHINA GUIDING CASES PROJECT March 12, 2014 () The citation of this Commentary is: Mei Gechlik and DAI Di, Guiding Case No. 26 and China s Open Government Information System, CHINA GUIDING CASES PROJECT, Mar. 12, 2014, available at This Commentary was written in English by Mei Gechlik and was edited by Jordan Corrente Beck. The Chinese version was prepared by DAI Di and Mei Gechlik, see 熊美英 戴杕 (Mei Gechlik and DAI Di), 指导案例 26 号与中国政府信息公开制度 (Guiding Case No. 26 and China s Open Government Information System), 中国指导性案例项目 (CHINA GUIDING CASES PROJECT), Mar. 12, 2014 available at gechlik-and-dai. For the full text of the original Guiding Case No. 26, see 李健雄诉广东省交通运输厅政府信息公开案 (LI Jianxiong v. Department of Transport of Guangdong Province, A Case About Open Government Information), 中国指导性案例项目 (CHINA GUIDING CASES PROJECT), 中文指导性案例 (Chinese Guiding Case) (CGC26), Feb. 11, 2014 ( 快速版本 ) (Express Edition), available at For the English translation of Guiding Case No. 26, see LI Jianxiong v. Department of Transport of Guangdong Province, A Case About Open Government Information, CHINA GUIDING CASES PROJECT, English Guiding Case (EGC26), Mar. 12, 2014 (Express Edition), available at Guiding Case No. 26 was discussed and passed by the Adjudication Committee of the Supreme People s Court of the People s Republic of China and was released on January 26, 2014, available at See also 最高人民法院关于发布第六批指导性案例的通知 (The Supreme People s Court s Notice Concerning the Release of the Sixth Batch of Guiding Cases), 人民法院报 (PEOPLE S COURT DAILY), Jan. 26, 2014, available at

2 2 On January 26, 2014, the Supreme People s Court released Guiding Case No. 26 ( GC26 ), LI Jianxiong v. Department of Transport of Guangdong Province, A Case About Open Government Information. This is the first Guiding Case ( GC ) on open government information. GC26 addresses some challenges encountered in the implementation of China s open government information system, but may have created some new problems. I. Guiding Case No. 26 On June 1, 2011, plaintiff LI Jianxiong submitted to defendant Department of Transport of Guangdong Province an application through the Guangdong Provincial Government s public network system to seek disclosure of certain government information. The system automatically generated an electronic application number and sent a text message to the plaintiff s mobile phone confirming the successful submission of the application. The defendant, however, did not detect the application or confirm receipt of it until July 28, Defendant replied to the plaintiff on August 4, The plaintiff argued that the defendant failed to reply within the time limit prescribed by Article 24, Paragraph 2 of the Regulation on Open Government Information of the People s Republic of China ( Regulation on Open Government Information ), 1 which provides: When an administrative organ cannot reply on the spot, it should reply within 15 business days of receiving the application. If it is necessary to extend the time limit for replying, [the administrative organ] should [secure the] agreement of the person in charge of the organ [responsible for] government information disclosure work, and should inform the applicant. The maximum extension of the time limit for replying must not exceed 15 business days. The defendant pointed out that the plaintiff had submitted the application through the Guangdong Provincial Government s extranet, rather than the defendant s internal local area network ( departmental intranet ). As the departmental intranet is physically isolated from the provincial extranet, data on the extranet cannot be available on the intranet until they go through the air gap, a security measure, by the data ferrying method. Due to the delay this method caused, the defendant s staff did not detect the plaintiff s application until July 28, Thus, the defendant argued, July 28 should be regarded as the date when the application was received, and, since a reply was sent on August 4, 2011, the defendant did not exceed the time limit for replying. The Yuexiu District People s Court of Guangzhou Municipality ruled against the 1 中华人民共和国政府信息公开条例 (Regulation on Open Government Information of the People s Republic of China), promulgated by the State Council on Apr. 5, 2007, and effective as of May 1, 2008, available at [hereinafter Regulation on Open Government Information].

3 3 defendant. 2 The court explained that the Guangdong Provincial Government s online system for the disclosure of government information by application should be integrated and authoritative and that, if [the network system] does not state otherwise, the successful submission of an application through that platform should be regarded as the relevant administrative organ s receipt of the application. The court further stated that the transfer of the application between the extranet and the intranet and between the upper- and lower-level administrative organs is a type of internal management matter of administrative organs, and cannot be a ground [for justifying] an administrative organ s late processing [of an application]. Consequently, on August 24, 2011, the court held that the defendant s failure to make a reply to the plaintiff within the time limit prescribed by Article 24 of the Regulation on Open Government Information was a violation of law. II. Significance The development of China s open government information system reached a milestone in 2007, when the State Council drew on pertinent experiences in major cities, such as Beijing, Shanghai, Guangzhou, and Hangzhou, 3 to promulgate the Regulation on Open Government Information. The regulation allows citizens, legal persons, or other organizations to, based on special needs arising from their production, life, scientific research, 4 obtain related government information from departments of the State Council, different levels of local government, and departments of local governments that are at the county-level or above. Applicants may submit their applications in person, by letter or fax, or through other channels such as the Internet. Since the Regulation on Open Government Information came into effect in 2008, online applications for the disclosure of government information have become more common. For 2 The original judgment, (2011) Yue Fa Xing Chu Zi No. 252 Administrative Judgment, has not been made available to the public. In this commentary, any reference to this judgment is based on Guiding Case No. 26, which is the Supreme People s Court s summary of the original. 3 In 2003, Guangzhou took the lead in adopting China s first set of local rules on open government information. Many other local governments, including Shanghai, Hangzhou, and Beijing then followed the practice. See 广州市政府信息公开规定 (Guangzhou Municipality s Provisions on Open Governmental Information), promulgated on Nov. 6, 2002, and effective as of Jan. 1, 2003, available at 上海市政府信息公开规定 (Shanghai Municipality sprovisions on Open Governmental Information) (repealed), promulgated on Jan. 20, 2004, and effective as of May 1, 2004, available at and 杭州市政府信息公开规定 (Hangzhou Municipality s Provisions on Open Governmental Information), promulgated on Apr. 27, 2004, and effective as of Oct. 1, 2004, available at In July 2004, the document entitled Beijing Municipality s Opinions Concerning Furthering the Work on the Disclosure of Information on Administration In Accordance With Law ( 北京市关于进一步深化依法行政信息公开工作的意见 ) was reportedly issued. See 北京政府机关重大决策要定期向社会公开 (Major Decisions of Government Organs in Beijing Need to be Regularly Made Open to Society), 人民网 (PEOPLE.COM), July 28, 2004 available at 4 Regulation on Open Government Information provides, supra note 1, Art. 13.

4 4 instance, in 2012, online applications accounted for 35.4 percent of all of the 18,945 applications for the disclosure of government information received in Shanghai, compared with 18.7 percent, 12.3 percent, and 2.2 percent in Hangzhou (4,054 applications in total), Guangzhou (14,049), and Beijing (15,729), respectively (see Charts 1-4). 5 Chart 1: Number of Applications for Disclosure of Government Information in Shanghai and Percentage of Online Applications, Chart 2: Applications for Disclosure of Government Information in Hangzhou and Percentage of Online Applications, Charts 1-4 display some trends that are worthy of further study. For example, why have the applications for the disclosure of government information received in Hangzhou and Guangzhou decreased significantly in recent years? 6 See 上海市政府信息公开年度报告 ( )(Shanghai Municipality s Report on Open Government Information ( )), 中国上海 (SHANGHAI CHINA), available at 7 See 杭州市 年政府信息公开工作年度报告 (Hangzhou Municipality s Report on Open Government Information ( )), 中国杭州 (HANGZHOU CHINA), available at ttp://xxgk.hangzhou.gov.cn/main/zfxxgk/ndbg/index.shtml.

5 5 Chart 3: Applications for Disclosure of Government Information in Guangzhou and Percentage of Online Applications, Chart 4: Applications for Disclosure of Government Information in Beijing and Percentage of Online Applications, The increase in the use of online applications, however, has led to a problem that Article 24, Paragraph 2 of the Regulation on Open Government Information does not explicitly address: what is the date of receipt for an online application? At issue is that the provision only provides that [w]hen an administrative organ cannot reply on the spot, it should reply within 15 business days of receiving the application. Whose receipt of the application counts? Must the application be received by the official(s) with the responsibility to receive these applications? Or 8 See 年广州市政府信息公开 ( 工作 ) 年度报告 (Guangzhou Municipality s Report on Open Government Information ( )), 中国广州政府 (GOVERNMENT OF GUANGZHOU, CHINA), available at 9 See 北京市 年政府信息公开工作年度报告 (Beijing Municipality s Report on Open Government Information ( )), 首都之窗 (WINDOW OF THE CAPITAL), available at

6 6 is the receipt of the application by the online submission system sufficient? Some local governments, like the defendant in GC26, seem to have taken the position that actual receipt of an application by a human being is necessary. For example, the websites of Beijing, Shanghai, Guangzhou, and Hangzhou have posted guides on applications for the disclosure of government information, all of which explain that when an administrative organ cannot reply on the spot, it should reply within 15 business days of the registration date. 10 The term registration date, which is not found in the Regulation on Open Government Information, suggests that relevant officials need to go through a process to register an application. But it is not clear what the registration process is or when it must begin. All of these uncertainties offer irresponsible officials opportunities to delay the processing of an application by not registering the application immediately. 11 GC26 illustrates well the problem of relying on officials actual receipt of an application. In this case, the plaintiff submitted the application on June 1, The defendant claimed that it did not detect it until July 28, Our interviews with some website engineers in China reveal that the transfer of data from an extranet to an intranet by the ferrying method can be completed efficiently. The nearly two-month delay in noticing the application was likely the result of human error. Further, if an online system, like the one used in GC26, can automatically send a message to an applicant to confirm receipt of the application, it is not unthinkable that the system could be set up to simultaneously send a message to the relevant officials, alerting them to retrieve the application on time. All of these issues show that the defendant presented a weak case. It is against this backdrop that GC26 was released to provide guidance on a rather new but typical area of law. 12 Official sources in China have commended GC26 for promptly address[ing] legal problems encountered in the development of open government information 10 See, e.g., 北京市人民政府政府信息公开申请流程 (The People s Government of Beijing Municipality s Open Government Information Application Process), available at 上海市人民政府办公厅依申请公开的有关事项 (General Office of the People s Government of Shanghai Municipality s [List of] Items Concerning Disclosure By Application), available at 广东省人民政府办公厅政府信息公开指南 (General Office of the People s Government of Guangdong Province s Guide on Open Government Information), available at 杭州市人民政府依申请公开的有关事项 (The People s Government of Hangzhou Municipality s [List of] Items Concerning Disclosure By Application), available at 11 For comments on the use of various excuses offered by governments when refusing to disclose requested information, see 蓝皮书 : 政府信息主动公开尚未达标理由五花八门 (Blue Book: Goals for Voluntary Disclosure of Government Information Have Not Been Achieved for Various Reasons), Feb. 24, 2014, 中国网 (CHINA NEWS), available at 12 For the criteria used to select a case for release as a Guiding Case, see Provisions of the Supreme People s Court Concerning Work on Case Guidance, CHINA GUIDING CASES PROJECT, Nov. 26, 2010, Art. 2, available at

7 7 networks. 13 Specifically, GC26 is praised for having clarified the understanding of the time limit for replying to online applications for the disclosure of government information. 14 III. Ambiguities and Recommendations Although GC26 is inarguably significant, it may have created some new problems. Prepared by the Supreme People s Court, the text of the Main Points of the Adjudication is particularly problematic and reads as follows: Where a citizen or a legal person or other organization submits an application for the disclosure of government information to an administrative organ through a governmental public network system, if the network system does not state otherwise, the date on which the system confirms the successful submission of the application should be regarded as the date on which the administrative organ receives the application for the disclosure of government information. The administrative organ s internal processing procedure for the application cannot be a ground for [justifying] the administrative organ s deferred processing [of the application]. [The resulting] delay in issuing a reply should be recognized as a violation of law. 1. if the network system does not state otherwise According to the summary of the original judgment prepared by the Supreme People s Court, the Yuexiu District People s Court explained that if [the network system] does not state otherwise, the successful submission of an application through that platform should be regarded as the relevant administrative organ s receipt of the application. This phrase allows local governments to create an exception where the Regulation on Open Government Information does not provide any. By including this phrase in the Main Points of the Adjudication, the Supreme People s Court has added ambiguity to a principle meant to offer clear guidance. Now, with the possibility of adding exceptions to their network platforms, local governments may compromise the expectation that the public is otherwise afforded by the regulation. 2. Scope of Main Points of the Adjudication The Yuexiu District People s Court reportedly stated that the transfer of the application between the extranet and the intranet and between the upper- and lower-level administrative organs is a type of internal management matter of administrative organs, and cannot be a ground [for justifying] an administrative organ s late processing [of an application]. This is 13 最高人民法院发布第六批指导性案例 (The Supreme People s Court Released the Sixth Batch of Guiding Cases), 法制日报 (LEGAL DAILY), available at 14 Id.

8 8 presumably the basis for the close of the Main Points section: The administrative organ s internal processing procedure for the application cannot be a ground for [justifying] the administrative organ s deferred processing [of the application]. [The resulting] delay in issuing a reply should be recognized as a violation of law. The Supreme People s Court seems to be trying to provide a guiding principle that would extend to applications for the disclosure of government information submitted through channels other than the Internet. While the Supreme People s Court s effort to create a broader guiding principle is admirable, one might argue that the principle stated here applies only to applications submitted online because the case at issue does not cover applications submitted through any other channel. If the Supreme People s Court intends to provide broader guiding principles, issuing a judicial interpretation, which takes the form of general rules, on the topic may be more appropriate. 15 Overall, GC26 has clarified some important issues encountered in the development of China s open government information system. To allow lawyers and judges to refer to GC26 effectively, it will be helpful if the original judgment of this case, (2011) Yue Fa Xing Chu Zi No. 252 Administrative Judgment, can be made public soon. In addition, GC26 has highlighted some problems that apply to all GCs: it is still unclear which part(s) of a GC should be referred to by subsequent courts 16 and whether the facts presented in the original judgment of each GC may be considered to ascertain how broadly the Major Points of the Adjudication cover. If these issues can be fully addressed in the detailed rules on the application of GCs that the Supreme People s Court has been drafting, GCs will likely become a useful tool to unify application of law, enhance adjudication quality, and safeguard judicial justice Currently, approximately 4,000 judicial interpretations issued by the Supreme People s Court are in effect. The Supreme People s Court s authority to issue judicial interpretations is stated in Paragraph 2 of The Standing Committee of the National People s Congress s Resolution on Strengthening Legal Interpretation, which provides that [q]uestions involving the specific application of laws and decrees in court adjudication shall be interpreted by the Supreme People s Court. ( 凡属于法院审判工作中具体应用法律 法令的问题, 由最高人民法院进行解释 ). See 全国人民代表大会常务委员会关于加强法律解释工作的决议 (The Standing Committee of the National People s Congress s Resolution on Strengthening Legal Interpretation), promulgated on and effective as of June 10, Provisions of the Supreme People s Court Concerning Work on Case Guidance, supra note 12, Art. 7. See CHEN Kui, How to Apply the Guiding Cases of the Supreme People s Court in Judicial Practice, CHINA GUIDING CASES PROJECT, Apr. 22, 2012, available at 17 Provisions of the Supreme People s Court Concerning Work on Case Guidance, supra note 12, Preamble.