Taming the Right to Information: Motive Screening and the Public Interest Test under China’s FOI-like Law

Published in The Journal of Comparative Law, vol. 12, issue 2, p. 203-215, 2018

Abstract: This article investigates the extent to which the public accountability value has been fostered by the ROGI by illustrating and assessing the judicial approaches to the motives of access and to the public interest test. The section which follows criticises the problematic judicial responses to the SC General Office’s interpretations, and identifies the discriminative treatment of three major sets of motive in access to information. The subsequent section summarizes Chinese judges’ unique understandings of the public interest test in the FOI context, and examines the major categories of public interest that the courts have identified under two exemptions respectively. The final section generalizes from its finding of the convergent results of both tests that there is a prevailing judicial policy to uphold ‘defensive transparency’ which is attached to the requester’s own rights of the person and property (‘personal or property right’ hereafter), but to refrain from supporting ‘civic transparency’ – that is, the transparency to be unconditionally enjoyed by every citizen in respect of public scrutiny of government performance. The Chinese courts have largely failed to yield their review power to uphold the pro-accountability value embodied in the ROGI, but have cooperated with administrative agencies in taming an otherwise politically significant right to information into a mediocre instrument for private interest assertion.

For more details, please read from HKU Legal Scholarship Blog: http://researchblog.law.hku.hk/2018/05/yongxi-chen-on-taming-right-to.html