China Law Blog

Although my comment is not China-related, it is worth making. On June 19, 2009, the Federal Court of Canada issued a ruling to the effect that Canada's access-to-information law does not apply to the offices of the prime minister or cabinet ministers. The court said that some records created by ministers' aides could be disclosed in connection with an access to information request by a member of the public when such documents are "controlled" by the bureaucracy. However, when such documents are in a minister's office or the PMO, they do not have to be provided because the Access to Information Act (Canada) does not require their production and release.

This decision is surprising when one consider that Canada is a developed country that is committed to the ideals of transparency and rule of law. One would expect China's laws to deny access to unclassified documents of politicals - but not Canada.

It is important to note that the case was filed by Laurie Throness, a researcher for the former Canadian Alliance party, after she was denied access to copies of the agendas of Liberal Prime Minister Jean Chrétien. the request was submitted after Prime Minister Jean Chrétien left office and, therefore, the request did not endanger the security of a sitting Prime Minister.
I raise this case so that we can put China's rules in perspective.

The lawsuit appears to be a standard filing under the Administrative Procedures Law which is specifically allowed under Article 33 of the regulations. One thing about the Open Information Regulation is that it has very broad exceptions for state secrets, but in this situation it is very hard to argue that the information being asked for is a state secret.

I don't think that it would be very difficult to get information concerning property seized during the Cultural Revolution. The Chinese government settled most of those cases in the 1980's, and the legal aspects of those cases are pretty well settled. My guess is that the officials involved were reluctant to release this information since they are worried about the inevitable lawsuits that are going to follow.

Also the Canadian situation is not surprising. Most Western nations exempt communications between the chief executive and his close advisers from freedom of information laws. For example, the US Freedom of Information Act only covers "federal agencies" and offices within the Executive Office of the President are not covered under the law. The law was drafted in this way to prevent some interesting constitutional conflicts.

In the US, there is the concept of "executive privilege" raises some interesting constitutional issues. Unlike in Canada, where it is clear that Parliament has the constitutional power to amend the Access to Information Act to include documents of the PMO, US Presidents since Jefferson have argued that by virtue of its Constitutional authority, there is information that the President is not compelled to release even if specifically directed by Congress. US Courts have acknowledged that this privilege exists although they have also asserted that they have the authority to limit the exercise of executive privilege (most notably in US v. Nixon).

(However if you really want to get Constitutional, I wonder if the PM can argue something akin to inherent executive privilege for communications taken under the aegis of the Governor-General and the Queen's Privy Council for Canada. This would include Cabinet and the Privy Council Office.)

Freedom of information is always interesting because there are some balances between public interest and state interests. The way that the Chinese regulation is drafted the state can basically withhold any bit of information by declaring them a state secret, and even that has its limits because there are some things that seem to obviously not be state secrets.

Cyndee Todgham Cherniak: "Although my comment is not China-related, it is worth making. On June 19, 2009, the Federal Court of Canada issued a ruling to the effect that Canada's access-to-information law does not apply to the offices of the prime minister or cabinet ministers...."

Great Scott, the Delorian works!!!

I was wondering if harris or other might have some straight forward directions or references to law numbers for making a freedom of information claim.
Can this be made to the local government or should it go to the central one?If you could post it or email me I would appreciate. I have a feeling a lot of Cultural revolution cases were not settled in the 80s.
thanks,
Simon