回避法定知情权的开放政府——香港政府信息公开制度评析 (Open Government Without a Statutory Right to Know: A Critical Assessment of the Access-to-Information Regime in Hong Kong)
Vol. 6 Constitutionalism and Administrative Law Review (宪政与行政法治评论) (2012) 91-127
30 Pages Posted: 5 Jul 2017
Date Written: March 1, 2012
Chinese Abstract: (中文摘要): 在香港的政府信息公开制度中，支撑公民获取政府信息的一般权利的，是缺乏上位法依据的行政守则。守则有推定公开、不限制申请人资格等优点，但也存在涵盖机构的范围过窄、豁免公开的条款过于宽泛等缺点。公民无法诉诸法院强制实施守则，但可以向申诉专员投诉。申诉专员较好地捍卫了最大程度公开信息的原则，但其建议缺乏拘束力。目前的数据无法表明，守则满足了公众对政府信息的真实需求，各种信息公开单行法也未能全面提高政府的透明度。政府能在一定程度上维持开放的形象，还因为香港继受的普通法和议会传统形成了促使涉及重大公共利益的政府信息向社会公布和流通的机制。但总体而言，政府的信息公开程度仍取决于政府的良好意愿，知情权缺乏根本保障。中国内地在参考香港政府信息公开的经验时，应当审慎分辨其得失.
English Abstract: Hong Kong is regarded by some observers as having an open government and embracing the free flow of information. Yet Hong Kong is also one of the very few developed economies that do not legislate on freedom of information nor grant citizens a general right of access to government information. This article examines the legal regimes and political institutions that improve government transparency in a peculiar and unsatisfactory manner. During the British colonial era, the Hong Kong Government introduced a non-statutory code of practice, the Code on Access to Information, that granted citizens access to information held by the departments and bureaux of the government. The Code remains in force after the return of the sovereignty over Hong Kong to the People's Republic of China. The Code endorses the principle of presumption of disclosure, and allows citizens to request information without producing any reason or justification. However, it includes 16 categories of exemption from disclosure, a substantial part of which are either overboard or ambiguous, and fails to cover public enterprises and statutory or advisory bodies in the public sector which are charged with public service functions. Citizens unsatisfied with government decisions regarding their requests can complaint to the Ombudsman. The Ombudsman can recommend disclosure if he deems the complaint substantiated, but that recommendation is not binding on the government. Since the Code neither creates any statutory right nor affects the obligations under other laws pertaining to information secrecy, citizens cannot apply for judicial review of violations of the Code. In contrast to the highly flawed legal regime of access to information, it is the parliamentary tradition and the largely free media that facilitate, and guarantee to a limited extent, the flow of government information to the citizenry. Nevertheless, the scope and degree of government transparency continues to depend mainly on the will of the government itself. The creation of a statutory right to information and its judicial protection are precondition for a truly transparency government in Hong Kong.
Note: Downloadable document is available in Chinese.
Keywords: Freedom of Information, Ombudsman, Freedom of the Press, Parliamentary Accountability, Presumption of Disclosure, Right to Information
JEL Classification: K19, K23
Suggested Citation: Suggested Citation