Qu Shaoshen, who is famous in Guangzhou for exposing the private use of government vehicles, noticed a government car parked at the city’s Dong Shan Hotel. That prompted Qu to request the release of Guangzhou’s regulations on the use of government and Communist Party vehicles from Guangzhou’s Administration of Industry and Commerce (AIC) under China’s open government regulations (OGI Regulations). The Guangzhou AIC refused the release on the grounds that the regulations are classified as a state secret. The decision of the Guangzhou AIC was upheld this year by the Tianhe District People’s Court and by the Guangzhou Intermediate People’s Court on appeal.
Classification issues now regularly come before Chinese courts, often in open government information cases when individuals sue government agencies to release information, (and less often in criminal cases for leaking state secrets). Most classification challenges end the same way as Qu’s case did, even though the information involved appears not to threaten Chinese national security in any way. The Supreme People’s Court standards in OGI cases that relate to state secrets are understood to limit a court to a superficial check of formalities. In criminal cases, the court is bound by state secrets determinations done by the National Administration for the Protection of State Secrets (State Secrecy Bureau) or its local counterpart.
Most Chinese academics take the view that judicial review standards in state secrets cases (whether OGI or criminal cases) inadequately protect human rights. Despite this, the classification standards issued in March 2014, which are not generally known to the world outside China, are intended to clarify procedures for state secrecy officials rather than to provide procedural protections to those seeking to challenge overly broad classification of state secrets.Enjoying this article? Click here to subscribe for full access. Just $5 a month.
What is new about these classification standards (the Interim Provisions on Management of State Secrets Classification, or simply the Classification Provisions), issued by the State Secrecy Bureau is that they provide definitions and procedures lacking in their framework legislation, the better-known 2010 State Secrets Law and 2014 State Secrets Law Implementing Regulations. The Classification Provisions define which “state organs” can classify information as a “state secret,” although they do not provide such guidance with respect to the classification authority of other “entities,” including institutions such as universities or state owned enterprises (SOEs). The Classification Provisions do not further specify the matters that may be classified, retaining maximum flexibility for the State Secrecy Bureau and its counterparts.
Because the army of state secrecy officials need to vet information intended to be released on government websites quickly, as most recently demanded by a State Council circular released on December 1, they need clear guidelines and procedures for doing so. The State Secrecy Bureau itself admitted in its official explanation that the Classification Provisions were needed because the legal standards and procedures for classification are incomplete and inadequate, and no declassification procedures exist.
Curiously, according to the State Secrets Bureau, the legal framework for the Classification Provisions derives from U.S. legal concepts (but is not a transplant of the U.S. system). It appears that China’s secrecy agency came to know and consider U.S. legal concepts through professors at some of Beijing’s leading law schools, who had spent time at some of America’s leading law schools. A State Secrecy Bureau official wrote, “The U.S. system is very significant to us as a reference to resolve the existing issues in the state secrecy system.”
The Classification Provisions clarify which state organs can classify information. The answer is what many have suspected — that multiple facets of the Chinese party-state can inherently classify information as state secrets. Aside from the Communist Party and state bureaucracies, Supreme People’s Court and Supreme People’s Procuratorate, that includes the Academy of Sciences, Academy of Social Sciences, Chinese Red Cross, All China Federation of Trade Unions, China Council for the Promotion of International Trade (China Chamber of International Commerce) and several other semi-official organizations.
However, the Classification Provisions fail to define what “entities” can classify information, with one academic commentator (published on the State Secrecy Bureau website, no less) criticizing central SOEs for exercising this authority. At the national level, companies such as the large state-owned enterprises affiliated with SASAC and institutions affiliated with the central government, such as Tsinghua University, exercise this power, with companies such as the China Aerospace Science and Technology Corporation receiving awards for their state secrecy work. Provincial and municipal level counterparts to the central-level state organs and other entities can also classify information.
The State Secrets Law Implementing Regulations require information to be classified when produced, and the Classification Provisions require classified information to be marked as such. Personnel with access must be notified if information is classified but it is not possible for state secrets personnel to mark the information as classified. If this system is implemented as intended, it would reduce the number of criminal cases where it was unclear whether information was classified, such as Xue Feng’s and Stern Hu’s.
Still, companies, institutions and individuals operating in China or doing deals with Chinese companies or institutions need to be aware that if the entity they are dealing with is a state organ, SOE, or state institution, it can classify information as State secrets — and there is a fuzzy line between an SOE’s trade secrets and state secrets. When companies, institutions, and individuals receive information from these entities, they had best confirm that the information they are obtaining and possibly removing from the mainland is not a state secret. Although classified information is supposed to be marked as such, if it is not marked and the person who has provided the information has failed to clarify that the information is classified, there is still a risk that the party that receives the information (and the party providing the information) can be prosecuted.
The Classification Provisions, while providing more rigorous procedures and standards for secrecy officials, do not change the standards that courts apply when facing a state secrecy claim, and this political climate does not suggest an appetite for more rigorous judicial review of state secrets classification. That means present and future Qu Shaoshens are simply out of luck, and that there’s little prospect of the #3 Beijing Intermediate People’s Court clearing Gao Yu of leaking state secrets, despite deferring a verdict in her trial.
Susan Finder blogs as the Supreme People’s Court Monitor. In doing so, she draws on experience and observations of the Chinese legal system gained as an academic at the City University of Hong Kong, where she wrote the first comprehensive analysis of the Supreme People’s Court, and in practice with the China business group of Freshfields, Bruckhaus and Deringer and two U.S. law firms. She also served as an arbitrator in China, which has enabled her to be on the cutting edge of Chinese legal developments.