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Council question: Enacting legislation on freedom of information and improving the Code on Access to Information
2017-10-18

Following is a question by the Hon Charles Peter Mok and a reply by the Secretary for Constitutional and Mainland Affairs, Mr Patrick Nip, in the Legislative Council today (October 18):

Question:

It has been reported that at present, more than 100 countries and regions across the globe have enacted legislation on freedom of information to regulate on how their governments handle public requests for access to government information.  However, the Hong Kong Government has all along been relying solely on the Code on Access to Information (the Code), which has not been updated since its promulgation in 1995 and has no legal effect, in handling public requests for access to government information.  Some members of the public have complained that the criteria adopted by the authorities for vetting and approving their requests for access to information are vague, and no reasons had been given when their requests were declined.  Furthermore, related complaints received by the Office of The Ombudsman have been on the rise in recent years, with a record high of 85 complaint cases received last year.  In this connection, will the Government inform this Council:

(1) among the requests for access to information made in writing received by various policy bureaux and government departments in each year from 2014 to 2016, of the respective numbers of those which did not cite the contents of the Code and those which were not made through the application form set out in the Code, as well as the respective numbers of requests which were acceded to fully or partially and those which were declined;

(2) given that the Law Reform Commission established two subcommittees in May 2013 to conduct studies on the topics of archives law and access to information respectively, of the progress and the expected completion dates of the studies, and whether the findings of the studies will be published; whether the authorities currently have drawn up a timetable for enacting the legislation on freedom of information; and

(3) in order to enhance the credibility of the mechanism for access to government information, increase the transparency of governance and avoid the situation of policy bureaux and government departments declining requests for access to information through wrongful application of the Code, whether the authorities have plans to update the Code by, inter alia, formulating more detailed criteria for vetting and approving such requests, requiring government departments to provide detailed grounds when declining the requests, setting out the penalties for contravening the Code by government officers, and improving the mechanism for applicants to lodge appeals against declination of their requests?

Reply:

President,

The Government has always been committed to providing information requested by members of the public in accordance with the Code on Access to Information (the Code).  The Code provides that, for the sake of openness and accountability, the Government will make available information that it holds to the information requestor unless there are valid reasons to withhold disclosure of information.  The Code defines the scope of information provided by bureaux and departments, and specifies the procedures and time frames for providing information requested.

Our reply to various parts of the question raised is as follows:

(1) We have all along been collecting and releasing the number of requests for information made under the Code. In 2014, bureaux and departments received 4 599 requests for information made under the Code. For cases which had been completed, 3 863 requests were met in full, 77 requests were met in part, and 92 requests were refused. In 2015, there were 5 183 requests for information received. 4 325 requests were met in full, 107 requests were met in part, and 88 requests were refused. In 2016, there were 5 144 requests for information received. 4 243 requests were met in full, 101 requests were met in part, and 118 requests were refused. We can see from the figures in these three years that over 97 per cent requests for information were met in full (95.5 per cent) or in part (2.2 per cent), and only about 2.3 per cent requests were refused. As for requests for information made without invoking the content of the Code and without using the application form provided in the Code, these requests not made under the Code cover a wide scope including requests and enquiries from different media organisations, bodies and individual citizens to different bureaux and departments.  As these requests are numerous and sent to bureaux/departments concerned by different channels such as mail and email, the Government does not take stock of and record the number of such requests and enquiries.

(2) The Law Reform Commission (LRC) set up the Archives Law and Access to Information Sub-committees in 2013 to study the subject of archives law and access to information respectively.  Since their establishment, the two Sub-committees have been meeting on a regular basis.  The Sub-committees are studying Hong Kong’s existing system and the laws and systems of other jurisdictions.  In the light of current progress, the Sub-committees plan to publish consultation papers as soon as possible in 2018, so as to consult the general public on the issues involved.  The Sub-committees will consider the views collected from the public consultation and finalise the reform proposals.  After considering the draft reports submitted by the Sub-committees, the LRC will publish the final reports.  We will study the LRC’s reports in due course and consider how to reform the current access to information system.

(3) According to the Code, unless there is good reason to withhold the disclosure of information under Part 2 of the Code relating to the provision on information which may be refused (for example the information concerned relates to defence and security; law enforcement, legal proceedings and public safety, etc.), bureaux/departments should work on the basis that information requested will be released when handling requests for information from members of the public.  If bureaux/departments decide to refuse the provision of information requested in full or in part, they must inform the requestors of the reasons for refusal quoting the relevant paragraph(s) in Part 2 of the Code on which the refusal is based with appropriate elaboration to justify invoking the relevant paragraph(s).  If any member of the public believes that a bureau/department has failed to comply with any provision of the Code including refusal to disclose information, he/she may ask the bureau/department to review the case.  The Code specifies that any request for review should be handled by a directorate officer at least one rank senior to the officer who made the original decision.  A clear record should be kept of the factors taken into consideration in the review process.  Apart from the review mechanism, the Code also provides a complaint channel.  If the requestor is not satisfied with the response made by a bureau/department under the Code, he/she may lodge a complaint to The Ombudsman who is an independent body.  The Government has all along been actively enhancing the operation of the Code, which includes strengthening training to enhance public officers’ understanding of the Code.  Between 2014 and March 2017, about 1 400 training programmes and talks relating to the Code have been organised by bureaux/departments with the participation of more than 27 000 public officers.  The transparency of handling requests by bureaux/departments has also been enhanced, for example by publishing online compendium of cases on complaints relating to requests for information upon conclusion of investigation by The Ombudsman, and publishing disclosure logs relating to requests for information released by bureaux/departments.  We also publish online statistics relating to access to information requests including quarterly statistical figures on requests for information handled by bureaux/departments and their responses, as well as quarterly figures relating to the use of exemption provisions for refusing disclosure of information made under the Code by bureaux/departments, so as to facilitate the public’s understanding of bureaux/departments’ handling of access to information requests.

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