(Updated in February 2016)
Ref. : L/M (1) to CSO/AW/GC/2/1
Government Secretariat
Government of the Hong Kong
Special Administrative Region
12 May 2010
General Circular No. 2/2010
Code on Access to Information
(Note : Distribution of this Circular is Scale C. It should be read by
all Directors of Bureaux, Permanent Secretaries, Heads of
Departments and Directorate Officers in Bureaux and
Departments, and all other officers who by the nature of their
duties may be required to provide information to members of
the public.)
Introduction
The Code on Access to Information (the Code) provides a formal
administrative framework for the provision of information by the Government
to members of the public with the objective of keeping the community well
informed about the Government, the services it provides and the basis for
policies and decisions that affect individuals and the community as a whole.
The Code was introduced, initially on a pilot scheme basis, in March 1995 and
was extended progressively to the whole of the Government in December
1996. All government departments* should comply with the provisions of the
Code, which are elaborated in a set of Guidelines on Interpretation and
Application of the Code (the Guidelines). This Circular highlights the salient
features of the Code and special areas for attention to facilitate departments to
implement the Code.
2.
Attached to this Circular is
Annex A to the Code which lists all
the departments to which the Code applies.
* The term “department” includes any policy bureau, department, bureau, force, service, unit, secretariat, or
other agency of the Government.
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Salient Features of the Code
3.
The underlying principle of the Code is that information held by
the Government will be made available, either routinely or on request, unless
there are valid reasons related to public interests, commercial interests, third
party or privacy to withhold the information. The aim of the Code is to
provide information as promptly and as helpfully as possible. It should
not be used, or perceived to be used, within or outside the Government, as a
means to obstruct the existing practices and avenues of providing information
routinely or informally.
4.
The Code defines the scope of information which departments
are to provide, either routinely or on request, and sets out procedures and
timeframes by which such information is to be made available. It
authorises
and requires departments to provide access to the information requested
unless there are reasons for not so doing. These reasons are set out in Part 2
of the Code and should normally be referred to if a request for access to
information is refused.
5.
Where a civil servantgovernment officer acts in good faith in the
course of his/her employment and, pursuant to the Code, releases or refuses to
release information sought, any civil liability that may ensue will be borne by
the Government.
6.
All requests for information under the Code should be dealt with
according to the timeframe as stipulated in the Code, i.e. information to be
provided within
10 calendar days from date of receipt of the request. If this is
not possible, an interim reply should be provided in which case the timeframe
will be extended to 21 days. Responses may be deferred beyond 21 days only
in exceptional circumstances, which should be explained to the applicant.
Any extension necessary should be kept to a minimum and should not
normally exceed a further 30 days.
7.
The Code provides for review of the original decision by the
department dealing with a request for information. It is further underpinned
by a complaint channel through The Ombudsman who is entirely independent
of the Government. An applicant who considers that a department has failed
to apply any provision of the Code properly may lodge a complaint with The
Ombudsman.
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8.
The Code does not apply to information held by courts, tribunals
or inquiries which are defined very broadly to include all judicial or
quasi-judicial proceedings. The existing rules governing disclosure of
information in the context of judicial proceedings are not affected. Equally the
Code does not affect statutory prohibitions on or rights of access to
information, or legal restrictions on access to information which may arise
under common or international agreements.
Approach on Release of Information
9.
The approach to release of information under the Code should be
positive. Departments should work on the basis that information requested
will be released unless there is valid reason to withhold disclosure under the
provisions of Part 2 of the Code.
10.
Part 2 of the Code defines the types of information the disclosure
of which may be withheld. Departments should not interpret the provisions of
Part 2 of the Code as directives to withhold the information requested. The
fact that specific information falls within the areas listed in Part 2 does not
necessarily imply that access to it should or will be refused. The withholding
of information under most provisions of Part 2 is subject to a
“harm or
prejudice test”. The department concerned has to consider whether the
public interest in disclosure of such information outweighs any harm or
prejudice that could result from disclosure.
11.
In general, other than requests for personal information or
commercially sensitive information, the identity of the requestor would
normally have no bearing on whether or not the information sought should be
released. Similarly, the purpose of the request, or refusal to reveal the purpose
on the part of the requestor, should not be a reason for withholding the
information requested.
Procedures for Refusing to Disclose Information
12.
When a request for information is to be refused or partially
refused, the applicant concerned must be informed of –
(a)
the reasons for refusal, quoting all the relevant paragraph(s) in
Part 2 of the Code on which the refusal is based, with appropriate
elaboration to justify invoking the relevant paragraph(s) in Part 2
of the Code (where applicable);
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(b)
the avenue of internal review if the applicant is not satisfied with
the department’s decision; and
(c)
the option of lodging a complaint with The Ombudsman.
13.
Paragraph 12 above also applies to cases in which there is a good
reason for departments to –
(a)
provide a summary of records instead of a copy of the particular
record requested; or
(b)
refuse to confirm and/or deny the existence of information (in
case giving the reasons for refusal would serve to confirm that the
information did or did not exist, the point in paragraph 12(a)
above does not have to be included in the reply to the applicant).
Level of Decision Making
14.
Decision on whether a particular request for information should
be met would be made by the subject officer responsible for the particular area
of work covered by the request for information. In complex cases or where a
refusal to disclose all or part of the information is contemplated, the decision
might best be made at the directorate (D1 or D2) level. In deciding on the level
of officer making decision on a request, account should also be taken on the
requirements pertaining to the rank of the reviewing officer under the Internal
Review Procedure (see paragraph 15 below).
Internal Review Procedure
15.
Any request for review should be considered by a directorate
officer at least one rank senior to the officer who made the original decision.
In a formal response to a review request, the availability of The Ombudsman
complaint channel should be made clear. The target response times for
handling Code cases mentioned in paragraph 6 above should be adhered to in
handling requests for review.
Non-Code Requests
16.
Whereas requests made under the Code would be processed in
accordance with the Code and related departmental administrative procedures,
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non-Code requests (i.e. requests which do not make specific reference to the
Code or are not made in the specified application form under the Code) should
be handled in the usual manner as they have been dealt with. However,
non-Code requests should be considered on the same basis as that applicable
to requests under the Code, i.e. in deciding the release or otherwise of the
requested information, consideration should be made in accordance with the
provisions of the Code. In line with the spirit of the Code, departments should,
as far as possible, adhere to the same target response times specified in the
Code.
17.
In case a non-Code request should be refused, departments
should, as far as possible, give reasons for refusal in accordance with the
provisions in Part 2 of the Code. Where applicable, departments should add a
footnote to the reasons given to the effect that the reasons are in line with those
in the Code, quoting the relevant paragraph number of the Code as well.
Departments should also advise the requestor of the review and complaint
channels.
Access to Information Officer
18.
Each department should designate its own Access to Information
Officer (AI Officer) who will be responsible for promoting and overseeing the
application of the Code, co-ordinating internal efforts in meeting the
requirements of the Code, ensuring that the various procedures are complied
with and organising in-house training on the Code, etc. The responsibilities of
an AI Officer are set out in
Annex B. Each department should also provide the
AI Officer with appropriate guidelines, including the department’s internal
circular on the Code and a set of detailed guidelines for implementation of the
Code to facilitate the AI Officer in discharging his/her duties.
The Guidelines on Interpretation and Application
19.
The Guidelines contain useful information on the interpretation
and application of the Code to assist departments in implementing the Code.
They, however, cannot cover every eventuality. Officers handling requests
made under the Code should exercise their judgement in individual cases in
accordance with the principles of the Code and the guidance given in the
Guidelines.
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Internet Publication
20.
The Code and the Guidelines have been published on the Internet
as
a
component
of
the
GovHK,
and
can
be
accessed
at
http://www.access.gov.hk. Departments should include a brief introduction on
the Code in its website and build a hyperlink to the above-mentioned website
(http://www.access.gov.hk).
Circulation
21.
Departments are requested to re-circulate this cCircular on an
annual basis to all officers involved in implementing the Code.
Advice on the Code
22.
Any request for legal advice (on a specific case or of a general
nature) should be addressed to :
Deputy Law Officer (Civil Law) (Advisory)
Department of Justice
(Telephone : 2867 20983918 4337 Fax : 2869 06703918 4521)
23.
Any request for advice on the interpretation of the Code and on
procedural or general matters should be referred to the AI Officer of the
department concerned who, if in doubt, should contact Senior Executive
Officer (Constitutional and Mainland Affairs)4 (Telephone : 2810 2562;
Lotus Notes address : &CMAB/SEO[CMA]4; Internet email address :
[email protected]) of the Constitutional and Mainland Affairs Bureau.
24.
General Circular No. 5/2009 dated 4 May 2009 is hereby
cancelled.
( Miss Helen TANG )
for Director of Administration
c.c. Judiciary Administrator
Annex A
DEPARTMENTS TO WHICH THE CODE APPLIES
Agriculture, Fisheries and Conservation
Hong Kong Police Force
Department
Housing Department
All registries and administrative offices of
Immigration Department
courts and tribunals for which the
Independent Commission Against Corruption
Judiciary Administrator has responsibility
Information Services Department
Architectural Services Department
Inland Revenue Department
Audit Commission
Innovation and Technology Bureau
Auxiliary Medical Service (department)
Innovation and Technology Commission
Buildings Department
Intellectual Property Department
Census and Statistics Department
Invest Hong Kong
Civil Aid Service (department)
Joint Secretariat for the Advisory Bodies on Civil
Civil Aviation Department
Service and Judicial Salaries and Conditions of
Civil
Engineering
and
Development
Service
Department
Labour Department
Civil Service Bureau
Labour and Welfare Bureau
Commerce and Economic Development Bureau
Land Registry
Companies Registry
Lands Department
Constitutional and Mainland Affairs Bureau
Legal Aid Department
Correctional Services Department
Leisure and Cultural Services Department
Customs and Excise Department
Marine Department
Department of Health
Office of the Commissioner of Insurance
Department of Justice
Office of the Communications Authority
Development Bureau
Offices of the Chief Secretary for Administration
Drainage Services Department
and the Financial Secretary
Education Bureau
Official Receiver’s Office
Electrical and Mechanical Services Department
Planning Department
Environment Bureau
Post Office
Environmental Protection Department
Radio Television Hong Kong
Financial Services and the Treasury Bureau
Rating and Valuation Department
Fire Services Department
Registration and Electoral Office
Food and Environmental Hygiene Department
Secretariat, Commissioner on Interception of
Food and Health Bureau
Communications and Surveillance
General Office of the Chief Executive’s Office
Secretariat of the Public Service Commission
Government Flying Service
Security Bureau
Government Laboratory
Social Welfare Department
Government Logistics Department
Student Financial Assistance Agency
Government Property Agency
Trade and Industry Department
Highways Department
Transport and Housing Bureau
Home Affairs Bureau
Transport Department
Home Affairs Department
Treasury
Hong Kong Auxiliary Police Force
University Grants Committee, Secretariat
Hong Kong Monetary Authority
Water Supplies Department
Hong Kong Observatory
Working Family and Student Financial Assistance
Agency
Annex B
Responsibilities of Access to Information Officer
An Access to Information Officer of a department is responsible for promoting
and co-ordinating efforts within the department concerned in meeting the
requirements of the Code. Specifically, he/she is responsible for :
(1a) ensuring that an administrative system, including an internal
circular on the Code and a set of detailed guidelines for the
implementation of the Code, is in place and up-to-date;
(2b) ensuring that all requests for information under the Code are
handled promptly and speedily in accordance with the
requirements of the Code;
(3c) ensuring that the administrative procedures for handling requests
as set out in the Code are being observed;
(4d) ensuring that all requests are met within the response time limits,
as set out in the Code, and bringing to the attention of the senior
management those cases where such targets cannot be met;
(5e) where appropriate, making recommendations for a decision by
the relevant division/unit head on the release/refusal of release of
information to which the provisions in Part 2 of the Code may
apply;
(6f) ensuring that all staff concerned are aware of their roles and
responsibilities in the adoption of the Code;
(7g) assisting the reviewing officer in handling requests for review;
(8h) overseeing the maintenance/compilation of statistics relating to
requests for information under the Code; and
(9i) co-ordinating staff training on all aspects of the Code.
