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Code on Access to Information
2013-06-05

Following is a question by the Hon Charles Peter Mok and a written reply by the Secretary for Constitutional and Mainland Affairs, Mr Raymond Tam, in the Legislative Council today (June 5):

Question:

According to the Code on Access to Information (the Code) promulgated by the authorities in 1995, members of the public may make requests to various bureaux or departments under the Code for access to the information held by the Government.  However, the Code does not have legal effect, has never been amended, and does not apply to all public organisations.  Furthermore, some members of the public have complained that the Government has rejected their requests for access to information without giving any reasons, and the criteria for determining whether or not to accede to such requests are vague. It is therefore difficult to safeguard transparency of information, and members of the public have difficulties in monitoring the use of public funds and conducting academic studies or research and development.  It has been reported that in 2011 and in the first nine months of 2012, 52 and 43 requests for access to information made under the Code were rejected respectively, and the reasons most commonly given are, in order of frequency, “third party information” (35 cases), “legal restrictions” (13 cases), “privacy of the individual” (12 cases) and “management and operation of the public service” (10 cases).  In this connection, will the Government inform this Council:

(a) given that according to paragraph 2.2 of the Code, if the public interest in disclosure of the information outweighs any harm or prejudice that could result, including both actual harm and prejudice and the risk or reasonable expectation of harm and prejudice (the public interest in disclosure outweighs the harm or prejudice), a department may refuse to disclose the information, and paragraph 2.2.3 of the Guidelines on Interpretation and Application (Guidelines) of the Code states that a civil servant is required to act reasonably in reaching his/her decision, of the procedures for various government departments to conduct the “harm or prejudice” tests, and whether the authorities have put in place any mechanism to review the decisions made by various government departments and whether the justifications thereof are reasonable; if they have, of the details; if not, the reasons for that; of the number of requests for access to information that had been rejected in the past five years on the ground that the public interest in disclosure had not outweighed the harm or prejudice, the government departments involved, and the detailed considerations in arriving at the aforesaid ground, including how the “harm or prejudice” tests had been conducted and how public interest had been assessed;

(b) given that it is stipulated in paragraph 2.14(a) of the Code that if the information is held for, or provided by, a third party, then such information may be disclosed with the third party’s consent, or if the public interest in disclosure outweighs the harm or prejudice, and it is also stipulated in paragraph 1.22 of the Code that if the third party makes representations against disclosure, or fails to respond within the stipulated time, a decision will be taken as to whether the information should be disclosed on the ground that the public interest in disclosure outweighs the harm or prejudice, of the details of the cases for which approval had been given in the past five years to disclose information involving a third party on the ground that the public interest in disclosure had outweighed the harm or prejudice; whether notices were given to all of the third parties in question when requests for access to information involving third parties were rejected; if notices were not given, of the reasons for that;

(c) given that it is stipulated in paragraph 2.13(a) of the Code that a department may refuse to disclose information relating to incomplete analysis, research or statistics, where disclosure could be misleading or deprive the department or any other person of priority of publication or commercial value, of the criteria adopted by departments for determining if the disclosure of such information could be misleading or deprive a person of priority of publication; of the numbers of requests for access to information rejected in the past five years on such grounds, the departments involved, and the detailed considerations in arriving at the aforesaid ground (including how to reach the decision that the disclosure of information could be misleading or deprive a person of priority of publication or commercial value);

(d) whether it will require all public organisations to adopt the Code and set up a mechanism under which the decisions made by various government departments/public organisations on disclosure of information will be subject to review by a third party, such as the Office of The Ombudsman (The Ombudsman), to ensure that the relevant personnel interpret and apply the Code in accordance with the criteria set out in the Guidelines; and

(e) notwithstanding a direct investigation on the Code is being conducted by The Ombudsman, whether the Constitutional and Mainland Affairs Bureau will proactively conduct public consultation on the policy aspects in reforming the Code, legislation on freedom of information and enacting archive laws; of the work schedule of the subcommittee of the Law Reform Commission to study the topic of access to information?

Reply:

President,

The Hong Kong Special Administrative Region Government endeavours to make available to the public information which it holds.  Members of the public who wish to obtain information held by the Government can make requests to relevant government bureaux or departments under the Code on Access to Information (the Code). Since the introduction of the Code in 1995, of the requests for information held by relevant bureaux or departments, about 98 per cent were met, in full or in part. The Code provides an effective mechanism for members of the public to access a wide range of government information.

The reply to different parts of the question is as follows:

(a) Part 2 of the Code sets out the categories of information that a department can refuse to disclose, including information the disclosure of which may harm or prejudice certain kinds of work or matters.  The Guidelines on Interpretation and Application (the Guidelines) of the Code gives a detailed interpretation in this respect. In deciding whether harm or prejudice may arise in disclosure of the information, a department must consider all relevant material and balance the public interest in disclosure against any harm or prejudice that could result in order to reach a reasonable decision.  Where the harm which may arise from disclosure would be extremely serious, then it is not necessary to establish that it would be likely or certain to occur to take it into account. On the other hand, if the perceived risk is neither very likely nor serious, it should be given less weight.  In addition, in circumstances where there is no statutory restriction or legal obligation which prevents disclosure, and where there is a clear public interest in disclosure of the information sought and this public interest outweighs the harm or prejudice that may result to the Government or to any other person, such information may be disclosed.

We have not collected information from departments on the number of cases where departments refused disclosure of information on the consideration that the public interest in disclosure had not outweighed the harm or prejudice that may thus be caused.  Any person who believes that a department has failed to comply with any provision of the Code may ask the department to review the situation. Any person who believes that a department has failed to properly apply any provision of the Code may also complain to The Ombudsman.

(b) We have not collected information from departments on the details of cases where departments disclosed information involving a third party on the consideration that the public interest in disclosure had outweighed the harm or prejudice that may thus be caused.

(c) Of the requests for access to information relating to incomplete analysis, research or statistics received in the past five years, 13 were rejected by relevant departments on the consideration that such disclosure could be misleading, or deprive the department or any other person of priority of publication or commercial value.  The departments involved include the Civil Engineering and Development Department, Drainage Services Department, Housing Department, Education Bureau, Transport Department, Transport and Housing Bureau, Buildings Department, Correctional Services Department and Registration and Electoral Office. Such decisions were made in accordance with the Code and having considered relevant factors in individual cases.

(d) Of the 22 public bodies under the jurisdiction of The Ombudsman, 21 have voluntarily adopted the Code or a similar guide on access to information. We understand that the Legislative Council Secretariat is now formulating an access to information policy.  Any member of the public who has sustained injustice in consequence of maladministration of these public bodies may lodge a complaint to The Ombudsman.

(e) The Ombudsman is now conducting a direct investigation into the access to information regime and the Government’s records management system in Hong Kong.  Separately, the Law Reform Commission has already established two sub-committees to consider the topics of access to information and archives law. The sub-committees will embark upon a comprehensive comparative study on the relevant laws in overseas jurisdictions with a view to considering whether improvement measures should be implemented in Hong Kong, and if so, how these measures should be implemented.

The Government will render co-operation in connection with the above investigation and studies, and will carefully consider how the prevailing arrangements could be further improved having regard to the findings of these investigation and studies.

Ends

Office Of Hon. Charles Mok, Legislative Councillor (IT)