How do we explain a situation in which a country is, on the one hand, suffocating from toxic air pollution, toxic soil, drinking water laced with poisonous chemicals and food that is adulterated, while on the other hand is actively attempting to hide the government findings that might expose the problem and lead to a remedy?

Of course, such contradictions are not unknown in the world at-large, especially where governments are involved. But in contemplating China, we run into a somewhat unique situation. As Justice Louis Brandeis famously noted, “Sunlight is said to be the best disinfectant.” In China we have a country with a long history of both Confucianism and then Marxism-Leninism, two political traditions whose predominant ideologies were consecrated not to “sunlight,” but to re-enforcing the infallibility and authority of the state and its leaders. In both instances the institutions of education and media, such as they were, were viewed not as independent actors whose goals were to uncover truth, but rather handmaidens of the state and adjuncts to state power.

Thus, what we are witnessing today when China’s Ministry of Environmental Protection refuses to grant a lawyer’s request for government-generated information on the grounds that these are “state secrets” is an expression of one part of China’s now deeply divided self which is in contention with the another. These two contradictory aspects of Chinese society-in-the-process-of-self-reinvention might be described as the “old” vs “the new”: as the retrograde impulse never to release any information that makes the state look bad colliding with the new impulse that was encouraged by Deng Xiaoping with his annunciation of the need “to seek truth from facts” which has been updated by the more recent notion of “scientific development.”

The truth is that both China’s ideological framework and its political system are locked in a state of eternal transition (and tension), making the country perhaps the least “resolved” nation of consequence on the planet today. While every nation must embrace myriad contradictions, China’s lack of foundational beliefs, or of even a confirmed political system, when coupled with its eternal state of reform, makes it very vulnerable to this kind of mind-boggling contrariness. But, what it bespeaks is of a country and society in a very profound, long-term state of destabilizing transition, one that cannot really be understood unless one is able to maintain equal and opposite forces as happening simultaneously in one’s head at the same time.

Under such a circumstance, it is hardly surprising that the release of potentially embarrassing environmental information that protects people’s health and saves people’s lives, which has become the official rule-of-the road in China on the one hand, still collides with the old abiding and very retrograde, impulse to control and censor information that risks making the state and Party look bad.

How long can China keep pollution data a state secret? The very fact that we can ask this question – that the answer is not obviously “As long as the government wants” – tells us something interesting about recent legal and political developments in China. And it sheds new light on the old question, “Does law matter in China?”

The Caixin web site recently reported that Lawyer Dong Zhengwei made a request to the Ministry of the Environment under the "Regulations on Open Government Information" that its data on soil pollution be made public. In response, the MOE stated that the information could not be released as it was a state secret.

The substance of this story is no surprise. Of course the government does not want to release this information. But think about how this scenario would have played out not so many years ago: (1) Lawyer requests information. (2) No response. And this could have happened whether or not there were regulations on open government information.

Instead, the existence of these regulations combined with a shift in what for want of a better term we might call legal culture has meant that the MOE apparently feels the need to respond in some way. It has to come up with a justification for not revealing the data. And that means it has to put itself in the embarrassing position of lamely claiming that this information is a state secret, implying that releasing it would somehow harm national interests.

Let's make two assumptions: (1) an action based on an explicit rationale is easier to criticize than one for which no rationale is supplied; and (2) government officials and agencies would, all other things being equal, prefer not to put themselves in the position of exposing themselves to criticism. If you buy those two assumptions, then at the margin we should expect to see more information being made available as a result of the regulations.

In other words, this law matters not because there is some institution out there (for example, courts) that can force the government to reveal information, but because the very procedure, even if it results in an effectively unreviewable decision not to disclose, puts some pressure on government to operate differently from the way in which it has operated in the past.

We see exactly this kind of pressure operating here. The very existence of the law on open government information, without changing in any way the government’s arbitrary power to designate information as a state secret, has nevertheless changed things and made it meaningful to ask how long the government can keep this particular data secret.

Some may find it strange that the official state media is out front lambasting the Ministry of Environmental Protection (MEP) for hiding of soil pollution survey data.   What’s happening is that the competition from commercial media and Internet is forcing state media to change too. The official publications are trying to expand their audience by shoring up their fraying credibility.     Hard-hitting criticism of the government is the way to sound more credible to the public. You can see this effort particularly in the weibo microblogs that the Communist Party central mouthpiece, People’s Daily has started posting.   The sharply critical tone is light years away from the dull defensive officialese of the print newspaper.   

Global Times is a commercial publication focused on international affairs that is part of the People’s Daily media group.    Beginning in the 1990s it attracted a huge audience by publishing exciting stories that dramatize foreign threats and stoke anti-foreign nationalism.    But now it is facing competition too.   And some young Netizens are questioning whether Global Times’ steady diet of hyper nationalism is simply the way the Party is trying to distract them from the serious domestic problems in their own backyard.  That’s why Global Times, led by its editor, Hu Xijin who has become a lightning rod for the debate over nationalism has started to post weibo criticizing the government about domestic problems.

The commercialization of the media -- and its challenge to the credibility of information provided by the official media and the government itself -- also drove the Chinese Communist Party to embrace of the norm of transparency, which is articulated in the Open Government Information Regulations that were enacted in May 2008.   This law is the basis for Mr. Dong Zhengwei’s request for the MEP to release the soil pollution data. I’d bet a lot that the new leadership will overrule the MEP and require it to release the data; the only question is whether they do it right away on the eve of the important National People’s Congress meeting about to open or shortly afterward. 

There are two tendencies at war here: the one that has been pushing for transparency and the public right to know, and the one that prefers to classify potentially embarrassing information as a state secret. This is a serious conflict which plays out in confusing results. The progressive group, in which Pan Yue played such an important part, succeeded in 2008 in getting Measures on Open Environmental Information (for Trial Implementation) Pan Yue himself, before he had to retreat into purdah, held the famous public hearings on the environmental impact of the proposed Old Summer Palace lake to demonstrate that public consultation and discussion was essential if good decisions were to result.

Since then, there has been a lot of progress, but it is patchy. Some city governments set up websites and publish environmental data as a matter of routine that would have been nigh impossible to get only five years ago. At the same time, there has been a lot of push back, notably over the refusal to publish EIAs on controversial dam projects and the repeated controversies over air quality data in Beijing, recently reprised in the great smog.

Soil pollution, for all the reasons that Elizabeth outlines, is especially sensitive: like air and water pollution, it has direct consequences for public health, but because it affects the food chain these can go much wider than local impacts. Four years ago, chinadialogue attempted to research the health impacts of pollution in Dongguan, including the impacts of soil pollution. We encountered repeated refusals to give us access to essential data: what were the pollutants; where was the soil contaminated; how badly and so on. It was possible to get hold of data at provincial level, but not possible to get the kind of detail that would allow us to relate it to local contamination or local impacts.

The many ways in which this data was refused are described in the report we produced. Then, as now, the health impacts of China’s pollution crisis come into the category of information that the government does not want the citizens to know.

The controversy over PM2.5 in December 2011, the recent public outcry over Beijing’s smog and the high nitrogen levels in air and water pollution, can be read as progress. In the recent smog episode, even normally compliant media criticized official reluctance to produce honest data and complained that is damaged the relationship of trust between the citizen and the government. The government now does publish PM2.5 data and the challenge of hand held testing devices in the hands of ordinary citizens is forcing transparency in practice as well as on paper. It is not hard to imagine that similar citizen testing of soil could force the authorities to respond positively.

But that will be decided by the new administration that will be confirmed in the upcoming NPC. Surely this timing is one factor in the public spat now over the right to information. The media are responding, as they now must, to public anger; they are also lining up with those who wish the new government to move in the right direction.

After all, information both guides action and, in the hands of the citizens, obliges the government to act. That means taking on big vested interests and, if not changing the industrial model, at least enforcing the many rules and regulations that currently languish in neglect. It might even make the case for the rule of law. It is, potentially, a pivotal moment.