Open Government Overseas

I was a reporter before coming to law school, but in the Media Freedom and Information Access Clinic, I find myself helping to litigate Freedom of Information Act (FOIA) requests without ever having filed one myself.

That's in large part because I reported from overseas. FOIA is an important part of the U.S. reporter's toolkit. It is also one of more than one hundred national access-to-information provisions worldwide, according to the Open Society Foundations. But these provisions' mileage varies.

Mainland China, the Hong Kong Special Autonomous Region, and Turkey, where I did most of my reporting, all have open government information provisions on the books. However, they tend to be much less useful for reporting than FOIA.

China's Regulations on Open Government Information (OGI) are almost ten years old. Since they were adopted, citizens have used them to chip away at China's expansive state secrets umbrella, as well as to gather government information for use in civil law suits, including environmental suits, according to Jamie P. Horsley, Senior Fellow of the Paul Tsai China Center at Yale Law School. However, the government wins the vast majority of administrative appeals and lawsuits under the Regulations, Horsley writes.

Moreover, while the Chinese press has certainly reported on citizens' OGI lawsuits over the years, contributing to broader awareness of the need for government transparency, Chinese media outlets have not taken an active role in filing requests themselves. I'm also not aware of an instance of a foreign news organization filing OGI requests.

Hong Kong media has attempted to use the former colony's Code on Access to Information, which the Hong Kong government promulgated in 1995, two years before Hong Kong's handover to China. But the Code has limited reach. It does not provide for judicial review of requests. Requesters can appeal to Hong Kong's Office of the Ombudsman to substantiate complaints, but the Ombudsman cannot itself compel the government to release information. Reporters have called for a stronger freedom of information law, but have not made progress in Hong Kong's Legislative Council.

Turkey enacted a freedom of information law in 2004. The law contains broadly cited exceptions for privacy and state secrets, but perhaps its biggest obstacle to becoming more useful for reporters is the increasing politicization of Turkey's bureaucracy along with the declining state of judicial independence in the country.

That leads to an obvious point: reporters in Turkey and mainland China, and to a lesser extent Hong Kong, face much more daunting problems than a lack of access to government information. Turkey and China are the world's two biggest jailers of journalists. Turkey's President Recep Tayyip Erdogan continues to govern under a far-reaching state of emergency, even as we approach the two-year anniversary of 2016's failed military coup.

Even Hong Kong has increasingly seen media ownership aligned with Beijing, as well as a troubling case in which five Hong Kong-based booksellers disappeared in 2015 and reappeared in the custody of mainland authorities.

That said, information regimes in countries not known for press-friendliness can still be surprising. The Chinese government's own online corporate registries, which provide searchable information on private shareholders, are valuable tools for investigative reporting that go far beyond anything available in the U.S.