Government information disclosure clears new path for gathering evidence

For a long time now, lawyers in China have not had a right of investigation and evidence gathering expressly granted to them by law, and additionally face a relative dearth of information sources. That is, until the implementation of the Regulations for the Disclosure of Government Information on 1 May 2008. Since then, we have achieved good results in several cases.

Case studies

Case 1. The Chinese shareholder of a Sino-foreign equity joint venture (JV) had been squeezing the foreign shareholder for a considerable length of time. So the government relocated the JV and in addition to cash, the JV was given a compensatory lot of land. The Chinese shareholder then falsely claimed that the JV could not continue to operate due to reasons including “environmental protection” and “zoning revision”, and brazenly shut down the JV. Additionally, the Chinese shareholder went behind the back of the foreign shareholder, using the new lot of land and cash to set up a new business on the sly, giving rise to a dispute.

In past cases of a similar nature, even if the foreign shareholder had countless reasons to suspect the excuses concocted by the Chinese shareholder, it was extremely difficult for it to verify and understand the real reason for the closure of the JV through regular channels. As the lawyers of the foreign shareholder, our firm submitted applications to the local environmental protection authority and planning authority for the disclosure of government information, requesting an explanation as to whether the JV had previously been subjected to environmental penalties, and whether there had been changes in the zoning of the lot on which it was located, receiving responses in the negative to both questions. In the subsequent dispute resolution procedure, the two government information disclosure responses exerted extreme pressure on the Chinese shareholder, playing a key role in assuring the rights and interests of the foreign shareholder.

Case 2. A supermarket operator leased a store to a catering enterprise, and the contract between the parties specified that the supermarket did not guarantee that the store could be used for catering purposes. Subsequently, the catering enterprise was unable to pass the environmental impact assessment, making it impossible for it to open its restaurant, leading it to sue the supermarket in court. In its complaint, the catering enterprise claimed that it had been informed by the environmental protection authority that “because of petitions from the public concerning the premises, the supermarket had been notified some time ago that they could not be used for restaurant operations”.

After being engaged by the supermarket, we learned that the supermarket had never been aware of the petitions concerning the premises, and never received notice that a restaurant could not be operated on the premises in question. However, “not being aware” and “not being informed” are typical negative facts for which adducing evidence is extremely difficult. If the traditional approach had been taken, using the testimony of employees as evidence, not only would the costs have been high, but their probative force would also clearly have been insufficient.

Consequently, we submitted two applications to the environmental protection bureau, asking it “whether it had previously rendered an administrative decision to the effect that a catering enterprise could not be established on the relevant premises”, and to give an account of the contents of the petitions from the public. The environmental protection bureau responded that it had never rendered such a decision, and that it was unable to provide relevant information on the petitions, advising us to approach the petition authority. The responses to these two applications for the disclosure of information provided a powerful counter-attack against the false accusations by the catering enterprise, playing a key role in the case.

Things to consider

First, there often exists a certain discrepancy between the fact to be proved and the contents of the information in the government’s possession. Accordingly, the lawyer cannot just simply raise his or her questions about the case, but must, through thinking and processing, convert the issue that needs resolving into an effective application for the disclosure of information. Taking Case 2 above as an example, one of the questions requiring resolution was “whether the environmental protection bureau had previously informed the supermarket that a restaurant could not be operated on the premises in question”. However, the information to which such question points does not fit the definition of “government information” in article 2 of the regulations, and therefore had to be reworked into “whether it had previously rendered an administrative decision to the effect that a catering enterprise could not be established on the relevant premises” so as to ensure the securing of a valid response.

Second, the regulations are silent on the form of the application that the government relies on to disclose information, but they do permit the applicant to let it be known in which form he or she would like the response. Accordingly, a lawyer should, in the application process, make sure that he or she requests a response in writing so as to satisfy the requirements of the Civil Procedure Law in respect of the form of evidence. Government authorities often prefer to give their responses verbally by telephone; however, if one expressly requests a written response, their level of co-operation is usually very high.

Third, when considering to whom the application should be made, the lawyer only needs to make a broad determination, and does not need to spend too much time on a precise analysis. Pursuant to the third paragraph of article 21 of the regulations, with respect to “government information that is not disclosed by the administrative authority in question or does not exist, the applicant shall be notified thereof. If the authority that discloses the government information in question can be determined, the name and the contact information of such administrative authority shall be provided to the applicant”.

Accordingly, as long as the relevant information does indeed exist, even if the government authority that first receives the application does not have the information in question, it should tell the applicant to whom the application should be made. In the first case above, the planning authority indicated that it did not possess zoning information on the relevant lot of land and advised us to submit our application to the management committee of the development zone under whose purview the lot fell. After re-applying, we secured the response from the management committee of the development zone with little trouble.

Vincent Mu is a senior associate and Zhou Chengcheng is an associate at Martin Hu & Partners