The Hong Kong Journalists Association (HKJA) is disappointed over the findings of the Law Reform Commission’s five years’ study of archives and access to information laws.
It is worrying that the consultation papers issued by the commission’s two sub-committees were nothing but a tactic to further delay the introduction of two legislations that are crucial to the monitoring of public servants.
The two sub-committees did recommend legislation be introduced to replace the current administrative codes and manuals. Yet, they proposed no criminal liability except for altering public records intentionally, rendering any legislation to be “a toothless tiger”.
What’s more ridiculous is that the Archive Law Sub-committee has made no proposals or recommendations on a number of key issues after 5 years of research. Instead, the public is consulted with open end questions. Among them are:
1) How to decide on the disposal of government records?
2) Which public bodies should be governed by the archives law?
3) How can the public access the archives?
4) What statutory powers, duties and staffing should the archival authority possess?
5) Should the archival authority have the power to audit the records management of public bodies covered by the archives law?
The Association cannot agree with the sub-committee’s explanation that this open ended consultation would enable a wider range of discussion; given the concrete draft bills and extensive discussions that civil society have had over the past two decades.
The consultation in its current format would only result in an unfocused discussion and zero consensus, allowing the government much room to dodge controversies and pressure. We worry this would only cause further delay to the enactment of this law.
As for the sub-committee on access to information, its recommendations are largely about the turning the existing non-mandatory code into a toothless legislation without addressing some important inadequacies. These include the lack of an enforcement authority to monitor its implementation, as pointed out by various organisations including the Ombudsman over the years.
Although the Sub-committee proposed that Government departments and public bodies covered by the regime be increased from a total of 74 to 86, it has set out a number of grounds for the Government departments and public bodies to withhold information, which include 12 categories of absolute exemptions, 11 categories of qualified exemptions and the installation of a prescribed upper limit of 15 man-hours in processing an application.
The enactments of these two important laws have been delayed for over 20 years. The Chief Executive pledged to implement an archives law in her election platform and in her policy address.
The two consultation papers, however, have offered us little confidence that an archives law is in the pipeline. Without the necessary foundation provided by an archives law, an access to information legislation appears even more distant.
HKJA has been striving for the two legislations since the 1990s. We have even invited a legal expert to draft a freedom of information law. We shall continue to study the committees’ proposals and make submission to the Government in due course.
Hong Kong Journalists Association
10 December 2018