Data Trap

Outrage soon began to swell about secrecy

Then, on 12 July, another leak occurred at a different CNOOC oilfield in the Bohai Sea. But this time the response was different: the SOA announced the small leak and the next day ordered the company to cease operations and to make information about the accident available to the public. It was a breakthrough for transparency in China. Green activist Ma Jun, author of the seminal book China’s Water Crisis and founder of the Beijing-based NGO the Institute of Public and Environmental Affairs (IPE), wrote that it was ‘the first time a government department has urged a polluting company to disclose information on an incident of this kind’. It meant ‘finally, the publication of environmental information has moved from being a public and media desire to a government requirement’.

There is good evidence that being open with environmental information is a cost-effective method for pollution control that can harness social participation and public pressure to reduce environmental hazards, often more effectively than top-down measures such as tightening emissions standards. The lack of open information in China has long been an impediment for environmental researchers, journalists and concerned citizens. For nine days in July 2010, for example, Zijin Mining managed to conceal from the central authorities and the public a massive wastewater leak from one of its copper mines into the Ting River in Fujian Province, southern China, that killed more than 1,500 tonnes of fish. A month after the disaster, villagers told the Southern Metropolis Daily that while they used to catch turtles, grouper, beardfish and eels in the river, now it was mostly dead. Eating what you caught was said to be ‘as dangerous as taking poison’.

Last year, my organisation, chinadialogue, tried to conduct an investigation in the city of Dongguan, a manufacturing hub in southern China’s Pearl River Delta that is thought to have high rates of occupational- and pollution-related diseases. Our researchers were continually rebuffed. Time and again, requests for interviews were refused; the environmental protection bureau, the local hospital, oncologists and environmental scientists all declined to speak to us. Even the proceedings of public academic conferences on environmental medicine were said to be confidential. One soil expert who agreed to an interview had to consult government officials first, who told him not to make any data available to the researchers.

It might be surprising then to learn that in 2008 the Chinese government introduced legislation not dissimilar to the UK’s Freedom of Information Act: the Regulations of the People’s Republic of China on Open Government Information. Even if the spirit of these regulations hadn’t convinced officials in Dongguan, Article 1 clearly states that the purpose of the regulations is to ‘ensure that citizens, legal persons and other organisations obtain government information in accordance with the law, enhance transparency of the work of government, promote administration in accordance with the law, and bring into full play the role of government information in serving the people’s production and livelihood and their economic and social activities’.

The regulations, issued by China’s State Council – an executive body chaired by Premier Wen Jiabao, which co-ordinates government ministries and helps to bind the Chinese Communist Party (CCP) with the central government, as well as, in effect, extending the regulations downward to provincial and local governments – establish two basic types of open government information. First, that which should be proactively disseminated by government agencies at various levels – for example, on their official websites – which includes reports on ‘financial budgets and final accounts’; emergency plans and early-warning information ‘against sudden public events’; and information ‘on the supervision and inspection of environmental protection, public health, safe production, food and drugs, and product quality’. Second, that which should be disclosed in response to requests from the public, usually free of charge (although the requester has to cover the costs of producing the information), within 15 to 30 days. The regulations outline a bureaucratic infrastructure for this system, including that ‘administrative organs’ should designate an office ‘to be responsible for the daily work of open government information’ and a requirement that annual reports on open government information should be published by ‘administrative organs at all levels’.

OPEN IN VIEWER

Residents from Harbin, north-east China queue for water after the city’s water system was closed as a result of a chemical spill in the Songhua River, 26 November 2005

Credit: Lou Linwei/Rex Features

As with similar legislation in other countries, there is a clause that stipulates the exemptions from disclosure – Article 8: ‘The government information disclosed by administrative organs may not endanger state security, public security, economic security and social stability.’

There is also Article 17, which states that if other laws or regulations ‘have different provisions on the scope of authorisation to disclose government information, those provisions shall be followed’. This means that other laws, such as the state secrets law – which is frequently used in China, not only to keep controversial information from public view, but also as a means of silencing individuals critical of the government – can trump the regulations.

The introduction of these regulations was preceded by a period of experimentation, which included local pilots and several years of research by the Chinese Academy of Social Sciences, an influential think-tank. Many Chinese government officials, particularly at the centre, believe there are benefits to greater transparency, for example, to help keep tabs on inefficiency and local corruption (an official from the State Council told reporters that the regulations would ‘help curb corruption at its source, largely reducing its occurrence’). However, in the hands of China’s grassroots environmentalists, it could be a powerful tool to hold polluters to account.

Environmental policy is a more tolerated sphere for public participation than many others in China, and although others have used the regulations – Chinese Aids campaigners, for example, have requested information about policies on protecting HIV/Aids sufferers – it is not surprising that the first government department to implement the national regulations as a more specific decree was the Ministry of Environmental Protection (MEP), a relatively weak body that has for a long time encouraged civil society and media oversight of environmental regulations to make up for lax enforcement by local governments that frequently prioritise economic growth over curbing pollution. The result was the Environmental Information Disclosure Decree, which requires, for example, that enterprises identified as ‘major industrial polluters’ should disclose and report emissions data within 30 days of a request from the public. It also sets out guidelines for the proactive disclosure of 17 types of government-held environmental information. It is on these latter measures that there has been the most progress. The website of Beijing’s municipal environmental protection bureau, for example, clearly discloses these 17 categories of information, including environmental laws, regulations, standards and administrative permits.

However, a report by free-expression campaigners Article 19, found that the Beijing bureau, despite its comprehensive website, was poor at responding to requests for information from the public. According to the report’s author Amy Sim: ‘A lot of officials interpret [the regulations]: as long as it’s not within the 17 types of proactive disclosure, they will not disclose.’ Reading the study, it’s clear that more sensitive information of relevance to campaigners – for example on the disposal and discharge of hazardous waste – is still very difficult to obtain. Alex Wang, a Chinese environmental law expert at the University of California, Berkeley, said: ‘China has made great strides in environmental disclosure in recent years, but right now the types of information that are most critical to uncovering environmental problems – emissions data, records of violations, environmental impact assessment reports – are still difficult, if not impossible, for the public to obtain.’

But with these regulations in place, on what grounds is sensitive information still being withheld? Speaking at a seminar in April, Wang Canfa, director of Beijing’s Centre for Legal Assistance to Pollution Victims, said: ‘Although the regulations list 17 types of information that should be disclosed and only one short clause on exemptions, that one short clause has become a catch-all.’ He referred here to Article 8, the exemption clause in the national regulations regarding national security and social stability, which also applies to the environmental decree.

An official told them the information was ‘confidential’

Open information legislation across the world contains similar exemptions. The extent to which a government relies upon these can give a good indication of its commitment to its own openness policy. But in China the situation is a little more complicated. In an authoritarian country you might expect to see ‘state security, public security, economic security and social stability’ relied on frequently as grounds to refuse requests for information. But although refusals from Chinese government agencies to release information are frequent, in her study of environmental information requests Sim discovered that such justifications were not cited as much as other explanations that, in fact, had no legal basis whatsoever. The grounds for rejection, she found, were generally ‘not very clear’: many officials replied that the information was simply ‘inconvenient to disclose’ or that it was ‘liable to be sensationalised by the media’. As with much regulation in China, the existence of the legislation – which, on the books, looks to be in line with international norms – doesn’t mean that it is being effectively, consistently or accurately enforced.

The press in China has taken an active interest in the poor implementation of transparency rules. In 2009, it became headline news in the country when two journalists from the government news agency Xinhua were stopped from photographing documents listing pollution violators, information that the authorities are supposed to disclose, at a provincial government meeting in Heilongjiang, north-east China. (It was this province that was most affected in 2005, when a series of explosions at a petrochemical plant created an 80-kilometre long toxic slick in the Songhua River. The State Environmental Protection Administration, the predecessor of the MEP, only admitted the serious pollution of the river ten days after the explosion and one day after water was cut off in the provincial capital of Harbin.) When an official told them the information was ‘confidential’ and the media already had ‘enough’ information about pollution, the reporters walked out of the meeting in protest – a gesture that earned them widespread sympathy from Chinese media commentators.

However, despite their interest in the implementation of the regulations, Chinese journalists have not made much use of the legislation itself. Last year I conducted a study, involving questionnaires and in-depth interviews with reporters, about the coverage of climate change in the Chinese media. Asked about the greatest obstacle to their reporting, many journalists replied that it was the lack of official transparency. For example, one said: ‘Information is not transparent enough. The government contacts the media only when the government needs to express something in the media, but the government rarely grants interview requests and officials often just speak in official language.’

But surprisingly, few of the journalists that I interviewed were aware that open information laws existed in China. None had used them to request information. In early 2009, Southern Weekend published on its website an environmental impact assessment, obtained using open government information laws, which approved the construction of a controversial petrochemical plant in Fujian Province. But such cases are very rare. The Press Freedom Index, published by Reporters Without Borders, last year placed China in its bottom ten countries: at 171 of 178 nations. Watchdog journalism is on the rise in China, especially in local newspapers and regarding environmental issues, but the evidence suggests that the press is still hobbled by tight restrictions and a powerful censorship apparatus.

OPEN IN VIEWER

A ‘functionally extinct’ rare freshwater finless porpoise found only in the Yangtze River

Credit: Richard Jones/Rex Features

This may help to explain why pressure for open information has come not as often from the press as from former journalists, who choose to work instead with the country’s burgeoning civil society organisations. This not only includes Ma Jun, who used to write for the South China Morning Post, but also the Guangming Daily journalist Feng Yongfeng, one of the activists who sailed out to the Bohai spill and founder of the NGO Green Beagle (named after the ship that took Charles Darwin on his famous voyage), which gathers together citizen journalists and amateur naturalists to explore the hidden waterways of Beijing; or Xi Zhinong, a cameraman who sparked a popular campaign against wildlife habitat destruction in Yunnan, south-west China.

The country’s oldest environmental NGO is Friends of Nature (FON). It has been campaigning since 2009 for the government to disclose information about its plan to move the boundaries of a protected area for rare and endangered fish species on the Yangtze River, a decision that it suspects is intended to make way for the planned Xiaonanhai dam project, near the city of Chongqing in southwest China. This boundary change ‘basically means a death sentence for these endangered species’, said Chang Cheng, a Beijing-based campaigner for FON. The species include the Chinese paddlefish and the Yangtze sturgeon, a so-called ‘living fossil’ that has survived for some 140 million years, since the time of the dinosaurs. (In 2006, another ancient creature from the Yangtze River was declared ‘functionally extinct’: the Baiji, a freshwater dolphin that had been living exclusively in that river for the past 20 million years.)

Using open government information laws, FON requested a copy of the government’s on-site investigation report and the declaration of the boundary change, which includes an impact assessment. But the Ministry of Agriculture refused these on the grounds that ‘procedural’ data is not covered by transparency legislation. Chang told me in an email: ‘This is like a “Catch-22” situation for the public who wish to supervise and participate in the government’s decision-making.’ He has a point: if the government isn’t willing to disclose how its decisions are made, and if its procedures aren’t being correctly followed, it’s difficult to see how freedom of information can be used to hold the government to account at any time other than after the event. Or to put it another way – it won’t be much help to find out that procedures were carried out incorrectly after the Yangtze sturgeon is declared extinct. The green group has teamed up with the China University of Political Science and Law to demand an administrative review that challenges the legality of this ‘Catch-22’ situation. They are still awaiting the result.

More than any other organisation, IPE, Ma Jun’s green group, has made extensive use of open government information to build the country’s first publicly accessible online databases of water and air pollution; it also uses the information to monitor the progress of government transparency itself, with regular reports including the Pollution Information Transparency Index and the Air Quality Transparency Index, which compare the availability of environmental information in cities across China, fostering a sense of competition between municipalities and keeping note of broad trends and specific violations. As a result, IPE has not only helped citizens to gain more accurate and timely information about pollution incidents and to strengthen environmental enforcement, but also has found an effective, innovative way to campaign for greater freedom of information and public participation.

The state of open government information reflects the delicate balancing act that defines governance in China today: between pressure for greater openness, public oversight and even grassroots democracy, while maintaining stability (or ‘harmony’) through high rates of economic growth, enhancing ‘social management’ and safeguarding the unchallenged political authority of the CCP. Yet there is hope in the dynamic way that the public has taken up the greater openness of government information in China. Even if the press has yet to embrace the regulations, grassroots activists have pushed forward transparency for the benefit of Chinese citizens. But for now, the country is far from its fifth-century poet Xie Lingyun’s vision of ‘deep pools of bright-hued fish’ – writing at a time when a coherent notion of the environment first emerged in Chinese culture. Today, there is not only an oil sheen on the Bohai Sea and the extinction of prehistoric river species to contemplate, but also the murky culture of censorship and obfuscation faced by the country’s defenders of the natural world.□