Access to Information Sub-committee of the Law Reform Commission published a consultation paper On 6 December 2018, to invite public views on whether reform of the current regime on access by the public to information held by the Government is needed.
In response to the consultation paper, we therefore submit that:
- The existing access to information regime based on the non-statutory Code on Access to Information(ATI) is an “effective and cost-efficient” way of dealing with access to information requests.
- Taking into consideration the terms of Article 16 of the Hong Kong Bill of Rights and the relevant case-law, legislation should be introduced to implement an access to information regime with statutory backing.
- In deciding the key features of the proposed access to information regime, one has to balance the public’s need to obtain more information about public bodies on one hand, and other types of rights including privacy and data-protection rights, and third-party rights on the other hand”.
- The description of the existing ATI system as “an effective and cost-efficient” is misguided. According to Ombudsman Office’s annual report 2018, 91 complaints were received in 2018, a record-high since the inception of the code.
- We welcome the introduction of FOI legislation. Since the proposed procedures primarily follow the existing ATI regime, new legislation should lower the current regime’s administrative hurdles, prevent official’s abuse of exemption, streamline the appeal system, and broaden the coverage of “public body” (see below for details).
- The legislative regime should be formulated on the principles that it would be easy to administer and cost efficient.
- We agree in principle the proposed system should be “easy to administer”. However, access to Information is a constitutional right to be exercised on a fair and equal basis. It must not be compromised for costs. One key missing piece in the consultation paper is a thorough consideration of social benefit against the running cost (Chapter 15), which consequently presents an imbalance view in the consultation paper.
- We recommend the establishment of an Information Commission under professional leadership with independent enforcement powers and clear responsibilities in monitoring the Law’s implementation in various public bodies. Its operation should be overseen by an independent and well represented body.
- Target response time to data request must be specified in the law. Timely response to data request without unreasonable delay should be stated in the law as the government’s obligation.
- We suggest the development of an online application and tracking system for data requesters to submit application, monitor the progress of request, and download the requested information in digital format.
- “Information” should be defined generally as information recorded in any form.
- We agree the principle that “information” should be defined generally as information recorded in any form, as inclusive as possible. But we should also develop a mechanism to minimize the chance that government officer deliberately “off-recording” information that is required by law to be documented and supposedly publicly disclosable. That’s also why the New Zealand system, in which information is referred as “any information held by a Minister in his official capacity”, is worth considering;
- It should include proactive disclosure provisions, taking into consideration relevant provisions under the existing administrative regime, and the provisions in other jurisdictions.
- A model publication scheme which does not require specific approval before adoption would be an efficient way to satisfy the proactive disclosure requirements. As for schemes which do not follow the model publication scheme, those would require approval from an appropriate body.
- We welcome broadening the scope of the proactive disclosure provisions and recommend the disclosure should be a continuous and consistent effort across department/bureau and the released information should be timely without unreasonable delay;
- At the initial stage, the list of ‘organisations’ covered under The Ombudsman Ordinance (Cap 397) should be adopted.
- The overarching principle is the “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers” (art. 16 of the Hong Kong Bill of Rights), suggesting no discrimination in defining “public bodies” and no restriction by administrative procedures;
- We recommend, besides the 86 organizations defined in the Ombudsman Ordinance, to further include: 1) Home Affair’s list of Bureau’s Advisory and Statutory Bodies; 2) public bodies covered by the Prevention of Bribery Ordinance; at the initial stage (or as soon as possible). A reasonable inclusion schedule should be established;
- Any person irrespective of whether he/she is a Hong Kong resident is eligible to make ATI request in Hong Kong’s future regime.
- While Hong Kong still commits to be a truly international city, regional information hub, and open data policy (Office of the Government Chief Information Officer), in principle we should have less eligibility restriction as possible, i.e. especially to facilitate foreign correspondent and international news agency’s work. But a system to prevent abuse and misuse of data request should be in place;
- Application fee should be tiered. The basic application fee should cover the first three to five hours of work. If it is estimated that the number of man-hours required cannot be covered by the basic application fee, then the applicant could opt not to proceed or to pay for the extra man-hours.
- If the estimated number of man-hours reaches a prescribed upper limit say 15 hours, then the public authority has the right not to process the application.
- We disagree with the 15-hour upper limit which is not only too restrictive and arbitrary but would also invite abuse from public bodies.
- We disagree with the charging of basic fee which is not required under the current ATI system.
- We agree in principle a fee system for the data request that requires non-trivial public resource and manpower. But the system should be transparent and the incurred cost should be foreseeable and cost-based. A mechanism should be developed to prevent deliberate over-estimation of the quote to discourage data request;
- The fee system should provide option for user to choose digital format and in the case no printing, reproduction, and publication cost should be incurred;
- Decisions about charging should be subject to review by independent body.
- Application for archival records should be made free of charge
- Reproduction of archival records and provisions of other services can be charged
- We agree the application for archival record should be free of charge;
- If a fee system is developed for the reproduction of archival record, it should provide option for user to choose digital format and in the case no printing, reproduction, and publication cost should be incurred;
- The proposed regime should include provisions which would target vexatious and repeated applications.
- A public body’s duty to provide access to information would be dispensed with if the application is vexatious, frivolous or a substantially similar request is repeated within a certain span of time.
- We agree in principle the proposed regime should introduce measures to prevent vexatious and repeated applications;
- However, the mechanism should be developed to allow reasonable repeated requests, for example request for non-static and time-changing information. The department should consider a broader range of proactive disclosure of time-dependence information, which public often demands. Appeal system should be established;
Recommendation 10, 11, 12:
- Adopting the following “absolute exemptions” on which the public body is not obligated to consider whether the public interest in maintaining the exemption outweighs the public interest in disclosing the information.
(1) Information accessible to applicant by other means
(2) Court records
(3) Legislative Council privilege
(4) Information provided in confidence
(5) Prohibitions on disclosure
(6) Defence and security
(7) Inter-governmental affairs
(8) Nationality, immigration and consular matters
(9) Law enforcement, legal and relevant proceedings
(10) Legal professional privilege
(11) Executive Council’s proceedings
(12) Privacy of the individual
- Adopting the following qualified exemptions on which a public body has to assess the balance of public interest for and against disclosure. Arguments against need to outweigh those for to justify non-disclosure.
(1) Damage to the environment
(2) Management of the economy
(3) Management and operation of the public service, and audit functions
(4) Internal discussion and advice
(5) Public employment and public appointments
(6) Improper gain or improper advantage
(7) Research, statistics and analysis
(8) Business affairs
(9) Premature requests
(10) Conferring of honours
(11) Health and safety
- The definition of exemption must be narrow and specific.
- We disagree with the introduction of absolute exemption which unnecessarily restricts legitimate data request that can be defended by public interest reason.
- We also disagree with the definition of several exemptions proposed. Please refer to Appendix 1 for our proposal on refusal and deferral of access and Appendix 2 for exemptions.
- The “public interest” test must be transparent, well defined, based on precedence, and take proportionality into consideration. The justification against non-disclosure and the assessment of balance between public interest and disclosure should be open to the applicant of data request.
- The duration of exemptions should be set at 30 years – the current time limit for archival records being made available for public inspection.
- Each time when an application is received for disclosure of a record/information which has not been made available for public inspection, the application has to be considered afresh. If the B/Ds concerned consider that the information should still be exempted upon the expiry of 30 years, they need to provide justifications in support of their decision.
- In respect of archival records, such justifications should be provided to the archival authority. As the record/information should not be closed indefinitely, the B/Ds will be required to review the record/information once every five years until the record/information is eventually opened.
- As the paper suggests “no universal standard” for the duration of exempt information, there is therefore not necessary to comply with the 30-year practice which was set in colonial and pre-digital era and is deemed outdated.
- Public’s growing demand for transparency and accountability sets the stage for a substantial relaxation of the disclosure requirement of some exempt information which is considered to be acceptable to be released in much shorter restricted period. Such duration should be considered to be substantially shortened to 15 or even 10 years, when no personal information is involved.
- Since the business cycle of a modern government is much shorter and faster than those in the pre-digital age, the 20-year or even the longer 30-year rule is hardly justifiable. For instance, cabinet papers or Executive Council papers for Australia (New South Wales and Victoria) are generally exempted only for 10 years; in Australia (West Australia), cabinet papers are restricted for 15-year and non-cabinet papers are 10-year; cabinet and treasury papers of Canada (Alberta) are inaccessible for 15-year and even down to 5-year for some cabinet decision papers (i.e. the exempt period ends after 5 years has elapsed since a decision was made).
- In the case of Hong Kong, according to the Basic Law, the standard term of office of the Chief Executive of HKSAR Government is 5 years and he or she is allowed to run for another term of 5 years. Arguably, for every ten years, a new SARG leadership is formed and may take a fresh look at all policy issues and decisions. Provision of public access to government and public information could facilitate relevant public debate and deliberation.
- In any case, where there is a legitimate concern on the part of the government of the day, the responsible official may provide justifications for extending the exempt period upon application.
- Where personal information is involved, the exempt period should be 25 years following the death of the person concerned (making reference to Canada (Alberta).
Recommendation 14 and 15:
- Conclusive certificates could be issued either by the Chief Secretary for Administration, the Financial Secretary or the Secretary for Justice, at a stage before judicial review to override any decision to disclose the information.in relation to the exemptions of:
․ Defence and security
․ Inter-governmental affairs
․ Law enforcement, legal and relevant proceedings
․ Executive Council’s proceedings
․ Management and operation of the public service, and audit functions
- We oppose the introduction of conclusive certificate system in Hong Kong. The system adopted by some western democratic jurisdiction seems irrelevant in the Hong Kong context, where a publicly accountable and democratic government remains unavailable. The right to seek information (no matter “live” information or archival record) is protected by the Article of the Hong Kong Bill of Rights and in principle should not be overridden by administration, unless the administration has a mandate from the voters. Unfortunately there is not the case of HKSAR government.
- The government should follow the proper procedure to seek court order to override the disclosure decision, if considered necessary. The court is the best place to make such decision in striking a balance between public interest and the government’s non-disclosure request. The “conclusive” decision should be made by the court but not by the administration.
Recommendation 16 and 17:
- A system of multiple review and appeal stages as follows:
First stage – Internal review of the decision by preferably another officer or officer of a higher rank.
Second stage – Review by the Office of the Ombudsman.
Third stage – If the applicant is not satisfied with the decision of the Ombudsman, he can appeal to the Court.
- The review and appeal mechanism of ‘live’ information should be applicable to archival records.
- The review and appeal mechanism proposed – which is is identical to the one used in existing code for access to information – needs to be revised. It has several limitations:
(1) First stage: Most civil servants have low awareness and are not properly trained to address public’s data request, despite the fact that the code has been running for 20 years (see Ombudsman report’s direct investigation report 2014). They have apparent conflict of interest to deny the data request related to maladministration or wrongdoing of their own department or subordinates. “Officer of a higher rank” is vague and we recommend the review officer must be at least in the rank of Directorate grade:
(2) Second stage: Instead of the Office of the Ombudsman, an Information Commission that is responsible for monitoring the implementation of the law at an early stage would make a more efficient review body. It should be given the statutory power to issue enforcement notes.
(3) Third stage: Judicial review.
- Where a request for information has been made to a public body, it should be an offence to alter, erase, destroy or conceal records with intent to prevent disclosure of records or information.
- However, any failure on the part of a public body to comply with a duty should not confer any right of action in civil proceedings.
- Agree the legislation should impose offence for altering, erasing, destroying, or concealing information
- Disagree with the exemption of civil proceeding
- Where the Ombudsman decides that a public body has failed to communicate information under the proposed regime, he has the power to issue a decision notice specifying the steps which must be taken by the public body and the period within which the steps must be taken.
- if the Ombudsman is satisfied that a public body has failed to comply with any of the requirements under the proposed regime, the Ombudsman has the power to serve the public body with an enforcement notice requiring it to take such steps within specified time in order to comply with those requirements.
- The second stage review body should be given the statutory power to issue enforcement notes to public bodies.
- The legislation should specify the penalty of department or officials for failure to comply with the enforcement notice
- With reference to information provided in confidence to public bodies including trade secrets and business information, we recommend that if the public body is minded to grant access to the applicant, the public body is obligated to notify the third party (supplier of the confidential information) to enable the third party to make submissions or to take out judicial review.
- If the public body is unable to cause the third party to be notified, then an application may be made to the Ombudsman to issue directions or to dispense with the notification requirements.
- We have no objection to the notification requirement to the third party but the notification should be done in reasonable time frame and should not become an excuse to delay the data request.
We agree to disclose our name in the Consultation Report of Access to Information issued by the Law Reform Commission.
Hong Kong Journalists Association
Refusal or deferral of access
(1) An agency may refuse access to a document –
(a) if it is an exempt document;
(b) if it is a document that is usually available for purchase;
(c) if it is a document that genuinely forms part of the library material held by the agency and accessible to the public.
(2) An agency may defer access to a document –
(a) if it is a document that, by or under this or any other Ordinance, is required to be published but is yet to be published;
(b) if it is a document that has been prepared for presentation to the Legislative Council but is yet to be presented; or
(c) if it is a document that has been prepared for submission to a particular person or body but is yet to be submitted.
Executive Council document
A document is an exempt document if it has been submitted to the Executive Council for its consideration or is prepared to be so submitted, being a document that was brought into existence for the purpose of submission for consideration by the Executive Council:
Provided that such document shall cease to be an exempt document on the expiry of five years after its preparation.
Document relating to judicial functions
A document is an exempt document if it relates to the judicial functions of a court or tribunal, or contains matter prepared for the purposes of proceedings that are being heard or are to be heard, or matter prepared by or on behalf of a court or tribunal (including any order or judgment) in relation to proceedings that are being heard before the court or tribunal;
Document affecting law enforcement and public safety
A document is an exempt document if it contains matter the disclosure of which could reasonably be expected –
(1) to prejudice the investigation of any contravention or possible contravention of the law, whether generally or in a particular case;
(2) to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained;
(3) to endanger the life or physical safety of any person;
(4) to prejudice the fair trial of any person or the impartial adjudication of any case;
(5) to prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law;
(6) to prejudice the maintenance or enforcement of any lawful method or procedure for protecting public safety;
(7) to endanger the security of any building, structure or vehicle;
(8) to prejudice any system or procedure for the protection of persons or property; or
(9) to facilitate the escape from lawful custody of any person,
unless the disclosure of the document would, on balance, be in the public interest.
Document affecting inter-governmental relations
A document is an exempt document if it contains matter the disclosure of which –
(1) could reasonably be expected to cause damage to relations between the government and a foreign government; or
(2) would divulge information communicated in confidence by or on behalf of a foreign government,
and the disclosure of which would, on balance, be contrary to the public interest.
Document affecting personal affairs
A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person, whether living or deceased:
Provided that such document is not an exempt document if it contains information concerning the person who has applied for access to the document.
Document affecting business affairs
A document is an exempt document if it contains matter the disclosure of which would –
(1) reveal trade secrets of any agency or other person;
(2) reveal information (other than trade secrets) that gas a commercial value to any agency or other person and the disclosure could reasonably be expected to destroy or diminish the commercial value of the information; or
(3) reveal information (other than trade secrets or information referred to above) concerning the business, professional, commercial or financial affairs of any agency or other person and the disclosure could reasonably be expected to have an adverse effect on those affairs or to prejudice the future supply of such information to the government or to any agency,
unless the disclosure of the document would, on balance, be in the public interest:
Provided that such document is not an exempt document if it contains matter concerning the business, professional, commercial or financial affairs of the person who has applied for access to the document.
Internal working document
(1) A document is an exempt document if it contains any matter the disclosure of which –
(a) would divulge –
(i) any opinion, advise or recommendation that has been obtained, prepared or recorded; or
(ii) any consultation or deliberation that has taken place involving officers or employees of any agency,
in the course of, or for the purpose of, the decision-making function of the agency; and
(b) would, on balance, be contrary to the public interest:
Provided that such document shall cease to be an exempt document on the expiry of ten years after its preparation.
(2) A document is not an exempt document by virtue of subsection (1) if it merely consists of factual or statistical matter, or reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters.
(3) Nothing in this section shall entitle an agency which is empowered or required by law to make any decision or recommendation to withhold the disclosure of –
(a) its findings on material issues of fact;
(b) the information on which such findings were based; and
(c) the reasons for such decision or recommendations.
Document subject to legal professional privilege
A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege.
Document affecting the economy of Hong Kong
A document is an exempt document if it contains matter the disclosure of which –
(1) could reasonably be expected –
(a) to have a substantial adverse effect on the ability of the government or an agency to manage the economy of Hong Kong; or
(b) to expose any person or class of persons to an unfair advantage or disadvantage as a result of the premature disclosure of information concerning any proposed action or inaction of the government or an agency in the course of, or for the purpose of, managing the economy of Hong Kong; and
(2) would, on balance, be contrary to the public interest.
Document affecting financial or property interests
A document is an exempt document if it contains matter the disclosure of which could reasonably be expected to have a substantial adverse effect on the financial or property interests of the government or an agency, and would, on balance, be contrary to the public interest.
Document concerning operations of agency
A document is an exempt document if it contains matter the disclosure of which could reasonably be expected to prejudice the effectiveness of any method or procedure for the conduct of tests, examinations or audits by an agency, and would, on balance, be contrary to the public interest.
Document of scheduled agency
A document is an exempt document if it is held by or is in the possession of any agency specified in the schedule of exempted agencies.