Monthly Archives: March 2013

From Behind the Great Wall: FOI in China and – About Method

Mar 18, 2013 Herbert Burkert

At a conference hosted jointly by Peking University Law School and the Carter Center, ex US-President Carter, as reported recently by freedominfo.org,  a highly recommendable information source on access to government information by the way, encouraged the Chinese government “to take critical steps toward institutionalizing the right to information, including reviewing the experiences to date under the current Open Government Information regulation and developing it into a more powerful legal regime with the statutory strength of a law.”

What these “Regulations of the People’s Republic of China on Open Government Information of April 5, 2007, effective May 1, 2008” are about, how and why they came into existence and what is keeping them alive, is described in Weibing Xiao’s book. According to Xiao, a Professor of Law at Shanghai University of Political Science and Law, the fight against corruption did not cause this development, but rather administrative problems with managing secrecy led to first tentative research and policy initiatives for greater transparency. These initial steps were then encouraged by an improved information flow environment in which – also in part due to technological developments – information exchanges increased between administrations and between citizens and administrations. Xiao’s account suggests a push-model of government information, one which while being encouraged for all levels of government seems to be particularly vital on the local level, where it is supported by long-standing and far-reaching administrative reforms.

Beyond this historical-analytical account I recommend the book for four reasons:

The book provides a highly readable account of how sensitive legal-political subjects – sensitive because they are perceived as overly dependent on Western concepts of the democratic law state – find their way into Chinese research agendas, how they are challenged and how they eventually legitimize themselves. The reader interested in public law will note – perhaps with some surprise – the importance of the Chinese Constitution and administrative law reform in this context.

Secondly, while it is obvious that a lot remains to be done in China, the account also serves as a mirror for the historical dependencies and shortcomings in those countries that might see themselves as champions of access to government information. Following the arguments and counter-arguments in China, readers will recall similar debates in their own countries, including references to cherished historical practices of secrecy in the past. Xiao’s quotation from Lao Zi （老子） in this context “People are difficult to govern when there is too much knowledge”(民之难治, 以其智多 (P. 29.) may still reflect the thoughts of many government officials here when they are faced with transparency requests.

The third reason for recommendation goes well beyond the subject proper of the book: In his analysis of the Chinese situation the author makes constant references to information flows in society, their structures, their impact on social and political developments and to the importance of how and with which objectives to address them by regulation. This is information law properly freed from the appearances of technology. And this is why Xiao’s book belongs in the Cyberlaw section: We still have to make substantial efforts to discover what is accidental about technology and what is the essence of information and its flow. Reading Xiao and his account of the Chinese developments we get a critical assessment of some of those approaches. While not yet providing a detailed methodology himself, he encourages us to look more closely at what law does to information flows.

Let me add a fourth argument, a puzzling one perhaps, based perhaps even on a cultural misunderstanding, but so intriguing for someone like me to whom English – as to Professor Xiao – has not been the first language. Coping with a second language limits the capabilities you may have in your first language to hide behind the flash work of oratory. You are forced to state your case simply and argue it closely, point by point. If then it is done so elegantly, economically and intellectually pleasingly, as by Xiao, it does make refreshing reading. – This, by the way, is the reason why I prefer to read German philosophers in their English translations.

Free Access to Law – Is It Here to Stay? Research Publications of Interest for Anybody who Believes In The Rule of Law

Mar 1, 2013 Ann Bartow

“What is a Legal Information Institute when the transcripts of judgments are refused for publication – even by the courts themselves – by the company contracted to provide the transcription service on some very shady grounds of copyright?” That is one of the questions lingering in the wake of a very ambitious recent Free Access to Law project.¹

The mission of the Legal Information Institutes (LIIs) it to maximize free access to public legal information such as legislation and case law from as many countries and international institutions as possible. To that end they produced the publications linked above. The “Local Researcher’s Methodology Guide” explains the reasons for the “Free Access to Law – Is It Here to Stay?” project in detail, and then provides instructions for researchers, including an “environmental scan matrix” and associative questionnaires.

The “Environmental Scan” is the first component of the “Free Access to Law – Is it Here to Stay?” global study on the sustainability of Free Access to Law initiatives. This report looks at the situation for the free open distribution of legal information in Kenya, Uganda, Hong Kong, India, Indonesia, Philippines, and Canada. The collected information includes a brief overview of each legal system, the legal environment (with a focus on copyright law, privacy, and secrecy based restrictions), legal education, the legal research environment (both online and off) and situates it in the context of each national economy.

The “Good Practices Handbook” adds depth and clarity to the instructions set out in the “Local Researchers Methodology Guide.” All three reflect the output of an undertaking that Mariya Badeva-Bright describes as an effort to “link two central concepts – the concept of success of a free access to law project and the concept of sustainability”. The objective is that by making law freely available, a legal information institute (LII) produces outcomes that benefit its target audience, thereby creating incentives among the target audience or other stakeholders to sustain the LII’s ongoing operations and development.”

The written portions of this project reflect an extensive and very thoughtful effort to map out ways that people can work toward consistent archiving and dissemination of legal information so that citizens have access to their own laws. As Kerry Anderson has noted In a VOXPOULII blog post, Free Access to Law matters the most to the poorest and most unstable communities:

Zimbabwe has not been able to publish its Law Reports since 2003 owing to the devastating collapse of infrastructure resulting from the political situation. Swaziland last published Law Reports in the 1980s. Many other countries have out-of-date Law Reports with no resources to continue the Law Reporting function. Others have written more eloquently than I on the necessity of having contextual law, particularly in common law jurisdictions. The point is singular and self-evident: how can the laws of a country be known if the laws of the country are not available?

Some of the project’s lessons are that “digitization of print materials and/or manual capturing of metadata … cannot be deemed a successful strategy in the long run – it is simply uneconomical to continue to do so past a certain stage. Engaging stakeholders in education of use of technology or development of IT solutions to support workflows for delivering of judgments or passing legislation may be a way of dealing with issues of digitizing and automating delivering of law to the public. Standards of preparation of legal material … adopted by all originators of legal information in a particular jurisdiction, will ease its dissemination and re-use.”² In other words, dead trees are not nearly as helpful as electrons, even in very poor countries, in providing access to law. Part of me wants to resist this conclusion even though I concede that it is undoubtedly correct. Paper publications may be traditional, resilient, and fairly copyright-restriction-defying once they are published but they add a cumbersome step to any knowledge-distribution chain. And as we learn from these publications, money for Free Access to Law initiatives is scarce.

It may be, as Eve Gray concluded that “[t]he most promising and sustainable future looks to be in small and innovative digital companies using open source publishing models, offering free content as well as value-added services for sale.” But librarians are a hardy and relentless people, and if there is a way to bring a Legal Information Institute to every corner of the globe, these are the people who will figure it out.