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Editor: Donald C. Clarke
George Washington University Law School

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Wednesday, October 8, 2008

Court takes freedom-of-information case against Anhui provincial government

Yes - pretty amazing. The Hefei Intermediate-Level People's Court has accepted, and held the first hearing in, a freedom-of-information case brought by an attorney against the Anhui provincial government under the State Council's Regulations on Open Government Information. This is reported to be the first freedom-of-information case in which a provincial government is the defendant; it is probably one of only a very few cases of any kind in which a provincial government is the defendant. (These cases don't occur simply because someone sues a provincial government; they also have to be accepted for hearing by the courts, and that's a high hurdle.)

The full story as reported in Caijing is here. Here it is in brief:

In May, 2007, four residents of Jixi County in Anhui applied to the Anhui provincial government for administrative reconsideration (行政复议). They were seeking to cancel a decision of the Xuancheng municipal government establishing an industrial park. The residents had been ordered to tear down their residences on the grounds that they had been unlawfully constructed in violation of urban planning regulations, but the residents believed that the violation arose only as a result of the decision to establish the industrial park.

In their reconsideration petition, the residents argued that there were numerous procedural flaws in the Xuancheng government's decision. In particular, it violated two State Council regulations providing that such zones could be established only by provincial-level governments, and that there had been no environmental impact assessment.

The Anhui provincial government, after accepting the application for reconsideration, eventually decided to suspend the reconsideration proceedings on the grounds that the relevant laws, policies, and regulations needed clarification through "a request for instructions to the relevant departments" (向有关机关请示).

The residents then brought an action under the Administrative Litigation Law protesting the suspension of reconsideration, but no court would take the case.

Their lawyer, Yuan Yulai (袁裕来), then conceived the idea of doing something under the Regulations on Open Government Information. He applied to the provincial government in his own name, seeking information on specifically which regulations the government had asked about, to which department the request for clarification had been made, and what the answer had been. His request asked for a written response from the Anhui government.

Not getting a written response, he brought an action under the Regulations on July 16, 2008, and the court accepted the case.

Among other defenses, the Anhui government has asserted that one of its employees provided the information requested by telephone on June 20, 2008. It will be interesting to see if this kind of informal communication is deemed to count. One of Yuan's purposes, presumably, is to force the provincial government to put something on the record and not to let it get away with vague statements about "the relevant departments."

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