~FiREEDOM OF INFORMATION REFORM IN '-----"' - CHINA: INFORMATION FLOW ANALYSIS by Weibing Xiao, BArts (History) LLM Submitted in fulfilment of the requirements for the Degree of Doctor of Philosophy, University of Tasmania, February 2010 DECLARATION OF ORIGINAL AUTHORSHIP This thesis contains no material which has been accepted for a degree or diploma by the University or any other institution, except by way of background information and duly acknowledged in the thesis, and to the best of the candidate's knowledge and belief no material previously published or written by another person except where due acknowledgement is made in the text of the thesis, nor does the thesis contain any material that infringes copyright. STATEMENT OF AUTHORITY OF ACCESS This thesis may be made available for loan and limited copying in accordance with the Copyright Act 1968 (Cth). oY-4 o/ (o>"J,/,o Weibing Xiao February 2010 ii ABSTRACT Most non-Chinese scholars have approached Freedom of Information (FOi) in China as a recent, strange and intriguing phenomenon. This thesis uses an array of Chinese sources, interviews with Chinese officials and citizens and information flow analysis to propose a more complex and detailed understanding of the evolution of FOi in China. The thesis argues that information flow, a theme to explore the gradual development of government receptivity to FOi in an information environment through time, can be used as a new explanatory model for FOi reform in a jurisdiction. China serves as an example to substantiate this argument. The origins of China's FOI legislation need to be understood within the context of improved information flow conditions resulting from multifaceted factors, including social, political, legal and economic ones. This improved information flow has constituted an enabling environment for the adoption of FOi legislation. This thesis also argues that it is necessary to reassess the widely divergent origins of FOi reform in China. By applying information flow analysis, the thesis asserts that social, political and legal factors should be accorded central roles in understanding the development of FOi in China. Economic growth and anti-corruption efforts in the process should be allocated important but secondary roles. This thesis uses information flow analysis to find that FOi reform in China formed part of a much longer process of increased transparency in the Chinese information environment, which gradually shifted from the acceptance of proactive disclosure to that of reactive disclosure. FOi thus has become a beneficiary of this gradual transformation of the Chinese information environment. This is the reason China has adopted a push model of FOi legislation stressing proactive disclosure of government information, which differs from many countries that have introduced a pull version of FOi legislation emphasising reactive disclosure through responses to access requests. iii The thesis maintains that existing compliance analysis focuses heavily on reactive disclosure, and thus is restricted in its application to China. It therefore utilises a revised compliance analysis model that focuses on both proactive and reactive disclosure. The revised model incorporates findings from empirical research conducted in China, allowing a more effective and dynamic analysis of compliance issues in China. Whilst information flow analysis in this thesis is limited in its application to an explanation of China's FOI phenomenon, it may have wider applicability as it is a dynamic and systematic explanatory framework for FOL iv ACKNOWLEDGEMENTS The work of writing up a doctoral thesis would not have been completed without the support of: My supervisors, Mr. Rick Snell and Professor Don Chalmers, who constantly supplied me informative and useful commentaries and friendly working environment. My friends, Paul Hubbard, Rhys Stubbs, Professor Randall Peerenboom and Professor Gino Dai Pont, who made helpful and inspirational comments on my drafts. Mr. Colin Darch and Professor Peter Underwood, who made a prepublication version of 'Freedom of Information and the Developing World: The Citizen, the State and Models of Openness' available. My editing team, Dr. Claire Hiller, Andrea Pentecost, Louise Oxley and Morag Porteous, who helped me proofread my thesis and improve my expression. My employer, Shanghai University of Political Science and Law, who granted me study leave. My parents, Shuihua Cheng and Xiaoxing Xiao, who sponsored my long journey of study. My wife, Jing Li, who encouraged me to do PhD research in abroad and then backed me throughout from every aspect. I owe gratitude to all of them. v TABLE OF CONTENTS ABSTRACT iii ACKNOWLEDGEMENTS v TABLE OF CONTENTS vi ABBREVIATIONS x LIST OFTABLES xi LIST OF FIGURES xi 1: INTRODUCTION 1 1.0 Introduction 1 1.1 Two explanatory models: accountability deficit and globalisation 2 1.2 Reassessment of FOi reform in China: local information flow conditions 11 1.3 Implementation: a revised compliance analysis model 20 1.4 The need for this research 27 1.5 Aims of research 29 1.6 Methodology 29 1.7 Note on terminology 31 1.8 Chapter summaries 32 2: INFORMATION FLOW AS AN ANALYTICAL DEVICE FOR FOi RESEARCH 34 2.0 Introduction 34 2.1 The reasons for developing an analytical device for FOi research 35 2.2 The basis for developing information flow analysis 37 2.3 Information flow analysis 41 2.4 High utility of information flow analysis 44 2.5 Limitations of the application of information flow analysis 48 2.6 Conclusion 49 3: THE IMPROVEffINFORMATION-ENVIRONMENT1\S~A~-- ---~-=~----- - RATIONALE FOR FOi REFORM IN CHINA 50 3.0 Introduction 50 3 .1 The past: limited information flow in the Chinese information environment 51 Vl 3 .2 The present: improved information flow in the Chinese information environment 57 3.3 A beneficiary of improved information flow: FOi legislation 69 3.4 Conclusion 70 4: DEMOCRATISATION AS A RATIONALE FOR FOi REFORM IN CHINA 71 4.0 Introduction 71 4.1 A type of FOi emphasising information flow: an acceptable version 72 4.2 Grassroots democracy: an experiment in transparency 83 4.3 Socialist democracy: developing by Openness in Government Affairs at all levels 87 4.4 FOi legislation: institutionalising Openness in Government Affairs 93 4.5 Conclusion 95 5: LAW-BASED ADMINISTRATION AS A RATIONALE FOR FOi REFORM IN CHINA 96 5.0 Introduction 96 5.1 Administrative law reforms: improving information flow 97 5.2 Administrative law reforms: a firm basis for FOi legislation 100 5.3 FOi legislation: an integral part of law-based administration 110 5.4 Conclusion 112 6: REASSESSMENT OF ECONOMIC GROWTH AND ANTI-CORRUPTION EFFORTS AS RATIONALES FOR FOi REFORM IN CHINA 113 6.0 Introduction 113 6.1 Reassessing economic development as a rationale for FOi 114 6.2 Reassessing anti-corruption efforts as a rationale for FOi 125 6.3 Conclusion 131 7: GRADUAL LEGISLATIVE PROCESS FOR FOi IN CHINA 132 7 .0 Introduction 132 7.1 Openness in Government Affairs: a firm basis for FOi legislation 133 7.2 FOi legislation: developments at the sub-national level 138 7 .3 FOi legislation: developments at the national level 141 7.4 Conclusion 146 vii 8: CIIlNA'S LIMITED PUSH MODEL OF FOi LEGISLATION 148 8.0 Introduction 148 8.1 Models of FOi legislation: pull versus push 149 8.2 A unique proactive disclosure system: evidence for a push model 153 8.3 A limited access mechanism 158 8.4 Broad and vague exemptions 160 8 .5 Omission of the maximum disclosure principle 163 8.6 Conclusion 164 9: COMPLIANCE WITH PROACTIVE DISCLOSURE REQUIREMENTS IN PRACTICE 165 9.0 Introduction 165 9.1 The supply side: willingness and capability to implement FOi legislation 166 9.2 The supply side: compliance with proactive disclosure in practice 181 9.3 Review systems: increasing the capacity of the demand side to redress non-compliance with proactive disclosure 188 9.4 The demand side: willingness to redress non-compliance with proactive disclosure 193 9.5 Conclusion 195 10: NON-COMPLIANCE WITH REACTIVE DISCLOSURE REQUIREMENTS IN PRACTICE 196 10.0 Introduction 196 10.1 Low willingness from the supply side: a controlling flow approach 197 10.2 Review systems: limiting the capacity of the demand side to request government information 208 10.3 The demand side: diverse interests in the use of FOi legislation 218 10.4 Conclusion 225 11: CONCLUSION 226 11.0 Introduction 226 11.1 Information flow analysis: explaining the adoption of FOi legislation in China 226 11.2 Information flow analysis: understanding the implementation of FOi legislation in China 228 11.3 FOi: moving from a beneficiary to a contributor to the Chinese information environment 229 viii 11.4 Conclusion 229 APPENDICES 231 Appendix 1: Participant information sheet 231 Appendix 2: Consent form 233 Appendix 3: China's Freedom of Information Regulations 234 Appendix 4: FOI legislation in comparatively larger cities 236 Appendix 5: FOI legislation in provinces and special municipalities 236 Appendix 6: FOI proposals submitted by deputies of the National People's Congress 237 Appendix 7: The main economic indicators in 1978 and in 2007 237 Appendix 8: Examples of Chinese citizens' use of FOI legislation 238 Appendix 9: Examples of Chinese journalists' use of FOI legislation 240 Appendix 10: Examples of Chinese legal professionals' use of FOI legislation 241 BIBLIOGRAPHY 243 References 243 Cases 279 Legislation 280 Policy documents 283 ix ABBREVIATIONS CCDI Central Commission for Discipline Inspection CPC Communist Party of China FOi Freedom of Information LGNI