Submission to HK Ombudsman on access to information and records management
12 February 2013
To: Alan Lai, Ombudsman
Dear Mr Lai,
On your web site we have found a press release dated 4-Jan-2013, requesting comments on HK's regime for access to information and records management. Unfortunately, you did not see fit to promulgate this press release via the Government's press release site, so we missed it. The fact that you are supposed to act independently should not prevent you from using that distribution channel, as the judiciary and legislative council do. Anyway, here is our belated submission.
Webb-site, which I founded in 1998, is Hong Kong's leading non-profit publication on corporate and economic governance. We strongly support the need for a law, a Freedom of Information Ordinance, to increase Government openness and transparency. The current Code on Access to Information is non-binding and as such is ineffective. The government claims a 98% compliance rate, but this is only achieved by counting numerous trivial requests for information (including information that has already been published) in the statistic.
The "difficult" requests, for example, copies of the full audited accounts of the Cyberport companies or the Government-controlled company which operates HK Disneyland, or the operating agreements, are rejected, often on spurious grounds of confidentiality. See our article of 7-Feb-2005, "Government 'Sanitizes' LegCo Cyber Report". Commercial dealings with Government should not be confidential, as the public interest and public monies are at stake. It is also in the interests of a competitive economy for Government contracts to be disclosed. The access law should also apply to any statutory body owned or appointed by Government, such as the Trade Development Council, the Post Office, the Town Planning Board, HKMA, SFC and MPFA, with appropriate exemptions for law enforcement operations.
An archives law should probably be part of the same ordinance, as the issues are closely related. There is little point in having archives if nobody can access them. In the digital era, the Government should be moving all its records, documents and processes to paperless, digital form. This allows for the indefinite storage of data without the physical limitations of paper archive management. It won't be a question of where to store kilometres of files, but a question of why someone in Government is hitting the "delete" button on terabytes of data that occupy only a single hard drive.
There should be an over-arching requirement that, unless the archives involve personal data such as tax returns or medical records, they should be made available without charge for free and open access on the web. This includes, for example, the archives of all tender documents, contracts, Government publications, minutes, transcripts and audio recordings of committee meetings and so on. Often we find that the Government has been deleting older documents from its web sites, or failing to archive web sites when departments are merged or abolished. The public should not normally need to file an information request to be handled by a civil servant, with the attendant government costs and delays. The information should be retrievable by the public from online servers with an instantly-satisfied HTTP request rather than a form-filling bureaucratic nightmare.
For the same reasons, the pay-wall on Government registries, including the Companies Registry and Land Registry, should be removed (see our separate article today on the Companies Ordinance, "HKIDs and Government secrecy"). All documents should be freely accessible. Operating costs are already covered by filing fees. A lot of these documents are filed electronically, and the government digitises the rest for internal use, so the incremental cost of putting the data online is minimal. The judiciary should also move to electronic filing and free online access to all court documents, including writs, affidavits and transcripts. Right now, we only get some judgments and rulings online, and those lag the printed versions by days.
The Copyright Ordinance should be amended to disallow Government claims to copyright on its works, so that when information is obtained within works produced by Government, the work can be freely reproduced by third parties. For example, aerial survey photos from the Lands Department should not be copyright, nor should maps and plans. This should not be a question of protecting revenues from copyright works, because the Government should not be involved in commerce. Taxpayers are already paying for whatever works the Government produces. If the Government is producing something of commercial value, then that activity should be privatised and competition introduced.
I hope that this helps you in your work, and would be pleased to meet to discuss these matters.
David M. Webb
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