回避法定知情权的开放政府: 香港政府信息公开制度评析

There is no legislation in Hong Kong granting a general right of access to government information to citizens. During the British colonial ear, the Hong Kong Government introduced a non-statutory code of practice, the Code on Access to Information, allowing citizens to request access to information held by the departments and bureaux of the government. The Code remains in force after the return of the sovereignty over Hong Kong to the PRC. The Code endorses the principle of presumption of disclosure, and does not require citizens to provide reasons for seeking access to information. Citizens unsatisfied with decisions of government departments regarding their requests can complaint to the Ombudsman. The Ombudsman can recommend the department concerned to disclose the requested information if he deems the complaint substantiated, but the recommendation is not binding to the departments. The Code includes 16 categories of exemptions from disclosure, a substantial part of which are either overbroad or ambiguous; and the Code does not cover public enterprises or statutory and advisory bodies in the public sector which are charged with the functions of public services. As the Code neither creates any statutory rights nor affect the obligations of keeping confidential government information under other laws, citizens cannot apply for judicial review of violations of the Code by government departments.

In addition, a few statutes require government departments to either proactively publish or disclose upon request a certain type of government information, especially the information concerning public expenditure and declaration of interests by public servants as well as public records relating to real estates, commerce and finance. However, there is few statutory obligations of disclosure regarding government information that relates to the people’s livelihood or helps to promote may promote public participation in policy-making.