The Council appreciates the work of the Sub-committee of the Commission in reviewing the current regime of the Access to Information (ATI) and trusts that after the collection and consolidation of various views from the public, the Commission can have more solid views on the way forward with regard to the ATI regime.
According to the Consumer Council Ordinance, the functions of the Council are to protect and promote the interests of consumers of goods and services, but the goods and services does not include goods and services supplied by the Government. In this connection, the Council does not provide its view from the protection and promotion of consumer interests on the services supplied by the Government, but as a public body to which the existing ATI regime applies.
Set out below please find its views on the 20 recommendations the Sub-committee put forward:
(1) Recommendation 1 & 2 – Legislation be introduced to implement an access to information regime with statutory backing, and the legislative regime should be formulated on the principles that it would be easy to administer and cost efficient.
With the experience in handling ATI requests under the current non-statutory Code on Access to Information (“the Code”), the Council is of the view that the current ATI regime has already possessed key features of relevant legislation, namely presumption of disclosure, timeframe for response, giving reasons for refusals, and an independent body to review the decisions. The Council considers the current ATI regime adequate and proper, which is easy to administer and cost effective. However, the Council understands that introducing a legislative regime may be able to fulfill the objectives of increasing government transparency and accountability, as well as improving public understanding of decision-making and operation.
In this connection, the Council is open minded on the legislation, which should be able to balance the views of various stakeholders. If a legislative regime is decided, cogent explanation as to the rationale behind the introduction of the legislation has to be provided to all the government departments and the affected statutory bodies, and the mechanism should be easy to administer and cost effective so as not to add extra burden to those affected.
(2) Recommendation 3 – “Information” should be defined generally as information recorded in any form.
The Council agrees that information should not be limited to documents nor is it confined to words or figures. Visual and aural information should be included, be it stored in any electronic device or machine readable form, or data / visual images embodied and capable of being reproduced.
(3) Recommendation 4 – The proposed access to information regime should include proactive disclosure provisions.
Paragraph 1.4 “Information to be published or made available routinely” of the Code is already a provision of proactive disclosure nature under the existing administrative regime, and therefore there is no conceivable reason to exclude such provisions if a new legislative regime is to be introduced.
(4) Recommendation 5 – The list of “organizations” covered under the Ombudsman Ordinance (Cap 397) should be covered by the proposed regime.
The Council is of the view that the list of “organizations” covered under the Ombudsman Ordinance (Cap 397) should continue to be covered by the ATI regime.
(5) Recommendation 6 – Any person irrespective of whether he/she is a Hong Kong resident is eligible to make access to information request in Hong Kong’s future regime.
The Council is of the view that the current regime of allowing any applicant irrespective of his/her nationality to make access to information request should continue as there is no conceivable reason for denying access to someone other than a Hong Kong resident.
(6) Recommendation 7 – Application fee should be charged and tiered in the proposed regime.
While the right to the access to information is well respected, a cost based approach should also be adopted so as to avoid abuse and encourage requesters to be more specific in the information they wish to have access. The charges levied should reflect the actual cost of providing the information, such as confirmation of the existence of the requested information, its retrieval and reproduction.
As the information requested varies in complexity and volumes, the key is the public body has to clearly inform the applicants in advance how much they will have to pay for obtaining the information they request. Where the requested information is substantive and so is its involved man-hours and costs, it is hence the applicant’s choice to pursue or abandon the request.
The Council agrees that there should be some uniformity of the charging mechanism across the public bodies that can demonstrate fairness and consistency. The mechanism should include the factors of man-hour rate and the man-hours required. This is to ensure the public resources and manpower are not excessively diverted from its public services.
(7) Recommendation 8 – Application for archival records should be made free of charge, and reproduction of archival records to be charged in line with the practices of other jurisdictions.
The Council does not see much difference between the procedure of the work in locating the “live” records and archival records. Yet, archival records may be stored in different forms such as microfilm and the retrieval of different records in different formats would likely incur different resources. It is considered that the same principles and mechanism depicted in (6) above should apply to archival records. That is, the applicant to be charged according to a mechanism with the actual man-hours involved in providing him/her the information. It is considered to be the fair and proper way in utilization of public resources.
(8) Recommendation 9 – Proposed regime should include provisions which would target vexatious and repeated applications. A public body’s duty to provide access to information would be dispensed with if the application is vexatious, frivolous or substantially repeated within a certain span of time.
The Council agrees that the precious public resources should not be strained by unreasonable requests. Vexatious and frivolous requests not only adversely affect the delivery of mainstream service but also affect the process of other legitimate and reasonable access to information.
The Council considers it a good measure to put in provision to target the vexatious and repeated applications in the current of ATI regime. If there is no formation of legislative regime, provision can be put in the current “Guidelines on Interpretation and Application of the Code on Access to Information” (“the Guidelines”) so as to assist the public bodies to deal with the unreasonable requests.
(9) Recommendation 10 – Exempt information to be categorized into absolute and qualified exemptions. Absolute exemptions have already been weighed in other separate access regime and do not entail the balance of public interest for and against disclosure. Qualified exemptions require a test on the balance of public interest for and against disclosure, i.e. the public body has to assess whether the public interest factors outweigh the exemption in disclosure. Recommendation 11 – A list of absolute exemptions is proposed. Recommendation 12 - A list of qualified exemptions is proposed.
In the current ATI regime, Part 2 of the Code sets out the 16 categories of information that may be withheld. The 16 categories of exemptions, however, are not categorized into absolute and qualified ones. Paragraph 2.2 of the Code provides that “References in this Part to “harm” and “prejudice” include both actual harm and prejudice and the risk or reasonable expectation of harm and prejudice. In such cases, the department will consider whether the public interest in disclosure of the information outweighs any harm or prejudice that could result”. In deciding whether to withhold the information, the public body applies the “harm or prejudice test”, and also considers whether the public interest outweighs any harm or prejudice that could result from such information disclosure.
Whilst the absolute exemptions in the legislation of other common law jurisdictions do not entail the balance of public interest for and against disclosure, the qualified exemptions do. The Council agrees to the proposal of the distinction between the absolute exemptions and qualified exemptions, which can assist the public bodies in exercising the exemptions towards the information requests. The two separate lists of exemptions can make the application of the tests on “harm or prejudice” and “public interest” easier as the public body only needs to apply such tests on the qualified exemptions.
The Council is concerned that making any legal sanction for non-compliance with the Code or certain provision may deter public bodies from making rational decision to turn down an ATI request which should have been refused legitimately and reasonably. In order to avoid possible legal sanction where their decisions are subsequently challenged, the public bodies may tend to compromise their gatekeeping function. The Council proposes that when contentious issues arise in deciding on the provision of information, the public body can seek the advice from the Ombudsman. Irrespective of whether such amendments be put in the Code and the Guidelines, or in a legislative regime, a provision of this kind can better assist the public bodies in disclosure.
(11) Recommendation 13 – The Sub-committee recommends that (i) the duration of exemptions should be set at 30 years for archival records; (ii) bureaux and departments (B/Ds) concerned need to provide justifications in support of their decision for record should still be exempted upon the expiry of 30 years; and (iii) B/Ds should review its record once every five years until the record is eventually opened.
The Council’s view on this aspect is already provided in its response to the Consultation Paper on Archives Law. The Sub-committee can make reference to it, in which the Council proposes the duration of archival records be set at 25 years.
(12) Recommendation 14 – The Sub-committee recommends in a proposed ATI regime, ministers are given the discretion to issue conclusive certificates to override the disclosure decisions of an appeal body and such conclusive certificates can be overturned by judicial review. Conclusive certificates should be issued either by the Chief Secretary for Administration, the Financial Secretary or the Secretary for Justice in response to the decision / enforcement notice issued by the Ombudsman, and at a stage before the Judiciary has reviewed the decision to disclose the information. Recommendation 15 – The recommendation of the certificate mechanism also applies to the archival records.
The Council considers having a review process of a decision is a feature of checks and balances and good governance. Building an additional tier of having the ministers to issue a conclusive certificate to override the appeal body’s decision can provide an additional channel for the review of the appeal body’s decision. However, given that disagreement with the Ombudsman’s decision will be subject to judicial review under the existing ATI regime, the introduction of conclusive certificate, which can also be overturned by judicial review, would seem redundant as the court is vested with the authority to make the final decision irrespective of the Ombudsman’s decision or the minister’s conclusive certificate, except that the latter would only make the process more cumbersome. The Council trusts that a balance has to be struck on these two aspects. While it is worth putting in measures for better governance and checks and balances in the review process, it should still allow the ATI to maintain its cost effectiveness and efficiency. The same principle should also apply to the archival records.
(12) Recommendation 16 – The review and appeal mechanism should have multiple review and appeal stages as (i) first stage – internal review of the decision by another officer or officer of a higher rank; (ii) second stage – review by the Ombudsman; and (iii) third stage – the applicant can appeal to the Court if he/she is not satisfied with the decision of the Ombudsman. Recommendation 17 – The proposed review and appeal mechanism also applies to archival records.
The existing complaint mechanism of the Ombudsman has been well established and recognized by the public. At present, the review of the decision on non-disclosure is conducted by a directorate officer of an organization, which is subject to further review by the Ombudsman when the applicant lodges a complaint on the non-disclosure with the Ombudsman. As the Ombudsman has the mandate to oversee a broad array of complaint cases including the access to information complaints, the review and appeal mechanism proposed by the Sub-committee in fact has been taking place. In short, the Ombudsman has already been given a wide range of investigative powers to conduct review in relation to the access to information requests and already possess the experience and expertise in pursuing this kind of complaints. So, if a legislative regime is to be introduced, similar mechanism should be incorporated. This mechanism should also apply to the archival records.
(13) Recommendation 18 – It is recommended that it should be an offence to alter, erase, destroy or conceal records with intent to prevent disclosure of records or information. However, any failure on the part of a public body to comply with a duty should not confer any right of action in civil proceedings.
Any tamper to the original records or information by an officer so as to prevent its disclosure is a deception or fraud, whereas the applicant misleads or deceives an officer for the purpose of obtaining access to the information is of the same nature. The Council agrees that such action with ill intent should be an offence. Section 23 of the Ombudsman Ordinance provides that any person who makes a false statement or otherwise knowingly misleads the Ombudsman in the exercise of his power commits an offence and is liable to a fine and imprisonment. Such kind of provision, however, is absent in the Code and the Guidelines.
This area may be under the purview of the proposed legislation of the archives law for the management, protection and preservation of records and archives in Hong Kong. Without prejudice to the legislation of the archives law, the Council proposes that a provision to remind that it may be an offence for the applicant and the public body to employ deception or fraud to cause or not to cause the provision of information, to be put in the existing Code and the Guidelines or in a legislative regime if it is formulated. The Council also agrees that any failure on the part of a public body to comply with a disclosure duty should not confer any right of action in civil proceedings.
(14) Recommendation 19 – In its review of application decisions, the Ombudsman should be given the enforcement power to issue decision / enforcement notice requiring the public body to take specific steps within specific time to comply with those requirements under the proposed regime.
Under Section 16 of the Ombudsman Ordinance, the Ombudsman, after making an investigation, is required to report his opinion and reasons together with a statement of any remedy that he considers should be provided, or any recommendation that he thinks fit to make. In his review of application decisions, the Ombudsman proposes in his investigation reports the rectifications and recommendations to the head of the organization concerned.
If the Ombudsman thinks it appropriate in the particular circumstances of the case not to report to the head of the organization, he may report to the Chief Executive of the HKSAR. If he is of the opinion that a serious irregularity or injustice has taken place, the Ombudsman may make a further report stating his opinion and reasons to the Chief Executive. The Chief Executive may then determine if a copy of the report should be laid before the Legislative Council.
By having such a publication mechanism, the Council trusts a rational head of organization will not opt for responses deviating from the remedies and rectifications recommended by the Ombudsman. In fact, heads of organization are found almost without exception to comply with the recommendations made by the Ombudsman, apparently for avoiding the matters from being subject to the public scrutiny for which any right minded person will endeavor to avoid. The Council considers the current regime with the Ombudsman empowered to investigate coupled with the serious consequence a head of an organization has to bear for non-compliance of the Ombudsman’s recommendation has been proved effective to ensure the proper disclosure of information. The Council sees the current ATI regime works well within the Ombudsman orbit. If there is the formation of legislative regime, it may not be necessary to confer additional power to the Ombudsman for his issue of a decision / enforcement notice.
(15) Recommendation 20 – The public body is obligated to notify the third party (supplier of the confidential information) if it is minded to grant access to the applicant. If the public body is unable to cause the third party to be notified, then an application may be made to the Ombudsman to issue directions or to dispense with the notification requirements.
The Council agrees that third parties should be notified of their confidential information to be accessed by the applicant so that they can make representations or take the legal proceedings deemed necessary. The Council trusts that the public bodies, in their course of handling confidential information owned by a third party, are used to notify and consult the third party of the application to access his/her confidential information. The Council agrees with the Sub-committee that such practice would be of minimal difficulty to the public bodies.
If the public body is unable to cause the third party to be notified, they can seek the Ombudsman’s advice prior to the disclosure of the confidential information. Should complaint be subsequently lodged with the Ombudsman by the applicant or the third party on the accessibility of confidential information, the Ombudsman can take into account the advice he gave to the public body. If there is no formation of legislative regime, the Council proposes that changes in this regard can be made by putting new provisions into the Code and / or the Guidelines.
Conclusion
The existing administrative regime on access to public body-held information based on the Code, together with the oversight of the Ombudsman have already been safeguarding the citizen’s right on access to public information. The whole regime has been working smoothly without causing much public concern. However, the Council agrees that transparency in administration not only provides the public with information on the reasons, facts, logics and basis of the decisions/actions taken by a public authority/organization, but also contributes to the credibility of that authority/organization. The Council is of the view that a balance has to be struck among stakeholders with regard to the ATI regime.
With the consultation on the legislation of the Archives Law is ongoing and its relevancy to the ATI regime, the Council considers that the review of the ATI regime needs to be considered together with public views on the legislation of the Archives Law. The Council trusts that the Sub-committee will consolidate the various views from the public for its way forward, and in the event that legislative regime is formulated, it would be easy to administer and cost effective with no additional burden exerted on the public bodies.
Consumer Council
March 2019
