Why Have Our Appeals for Information Disclosure Been Ignored?

China Development Brief, No. 52 (Winter 2011)

中文 English

Green Watershed was particularly interested in knowing which local banks might have financed the factory’s operations as part of their strategy of applying pressure on polluting factories through their creditors.  In an interesting follow up to this story, we were informed by a well-known Beijing-based environmental NGO that Green Watershed’s efforts may have had some effect.  In speaking with one of the companies involved in the chromium pollution, this NGO found the company was having difficulty getting bank loans.  When asked why, the company manager said it was because of an environmental organization that had been spreading negative information to the banks about the company’s environmental record.

An Arduous Process for NGOs Seeking Information Disclosure on Qujing’s Chromium Pollution

For more than ten years, a secret has remained hidden about Xinglong village, a remote village in Luliang county (Qujing city) in the province of Yunnan.   Xinglong is so remote that one can hardly find it on the map.  A recent news report disclosed hundreds of thousands of tons of highly toxic chromium residue in the Nan Pan River, source of Pearl River and a “cancer village” nearby with nearly thousands of affected households. The company behind it, the Yunnan Province Luliang Chemical Industry Co., Ltd. (hereinafter referred to as “Luliang Chemical”) had been preparing for a public listing with strong backing from banks, according to accounts.

With the growing number of environmental accidents in recent years, China’s government has piloted a green credit policy and a series of related measures to require banks to manage credit risks arising from environmental incidents. Measures have also been taken by several banks to implement the green credit, by refusing or reducing loans to polluting enterprises or projects.

In order to trace the profit motives behind the chromium pollution incident and assess how well the concerned Yunnan provincial departments have been implementing the central government’s green credit policy, the Green Watershed began a dialogue with numerous NGOs, banks and regulatory bodies and filed for information disclosure in accordance with the law.

After the pollution incident was revealed, the first action that Green Watershed took on August 29, 2011, was to jointly issue with 23 Chinese NGOs  An Open Letter from Environmental NGOs to 16 Listed Chinese Banks Regarding Luliang Chemical’s Chromium Pollution Incident, hoping to discover if the banks and their branch offices had financed Luliang Chemical and its two affiliates. However, at the time this article was written, the only replies received were from the Industrial Bank and the Shanghai Pudong Development Bank, stating they had no financing relationship with the aforementioned three companies.

The second action taken by Green Watershed was to file for information disclosure with the government’s financial regulators and environmental protection authorities. In accordance with the Government Information Disclosure Regulations and Comments on Regulations for the Implementation of Environmental Policies and Credit Risk Prevention (hereinafter referred to as “green credit” policy) and internal regulations of the relevant government departments of Yunnan province, Green Watershed in September and October of 2011 petitioned the Kunming branch of the People’s Bank of China, the Yunnan Banking Regulatory Commission, and the Yunnan Environmental Protection Bureau to request information be disclosed about the  banks that financed Luliang Chemical and the way in which authorities had handled and responded to the pollution incident.  A written acknowledgement of receipt was provided by the above three departments.While we were pleased to receive a positive response from all three government departments, the actual substance of their response was disappointing. Using different strategies, all three government departments declined our requests for citizens to exercise their right to information.

Strategy 1: Using “Commercial Secrets” as a Pretext

The Kunming branch of the People’s Bank of China refused to disclose information on the banks that had financed Luliang Chemical and the details of the loans, on the grounds of commercial confidentiality. It cited the following provision in Bank Loan Registration and Consultation Measures (Interim): “Article 22, information about loans and loan borrowers obtained through the bank loan registration and consultation system shall not be disclosed to a third party.” “Article 23 … the People’s Bank of China shall not disclose information about financial institutions and borrowers at will.”

Many challenges still remain for obtaining government information disclosure, and “trade secrets” have been the primary grounds for refusing information disclosure. Yet, much controversy surrounds the notion of “trade secrets” in academia as well as in judicial precedent. It is exactly because the term is rather vague and difficult to define that it is being used indiscriminately by various government departments as part of their “security” lexicon.

We found on the website of the Kunming branch of the People’s Bank of China a provision in the People’s Bank of China Kunming Branch Duties in Requests for Information Disclosure (interim) that states: “Article 20, the Kunming branch of the People’s Bank of China may not disclose the following information: (1) involving state secrets, trade secrets, matters or individual privacy. But with the consent of the party or if the Kunming branch deems that withholding the information involving trade secrets and individual privacy may have a significant impact on the public interest, it can disclose the information.”  It is apparent that the public interest should take precedent to the protection of “commercial secrets.” Even if “information on banks that finance polluting enterprises” is considered a “commercial secret,” it is apparent that the public interest should take precedence over the protection of commercial secrets if significant damage has already been inflicted on the environment and public safety and may pose yet a greater threat (like the Qujing chromium contamination). The government departments made a choice that reflects the trade-off they made between the public interest and commercial interests.

Strategy 2: “Passing the Buck”

The Qujing chromium contamination was considered a major environmental pollution incident by the Yunnan Provincial Banking Regulatory Commission. Their position was that they do not have primary responsibility for reporting information about how the incident was handled. Rather, they said, the Environmental Protection authorities should be contacted for the relevant information.

Although the Qujing chromium pollution should be considered environmental pollution, we had requested the disclosure of information pertaining to the “Yunnan Provincial Banking Regulatory Commission’s handling of the Qujing chromium pollution, response and implementation measures.” In 2007, the Ministry of Environmental Protection, the People’s Bank of China and the China Banking Regulatory Commission jointly issued a document on green credit policy that expressly stated:

“Environmental Protection bureaus at all levels, the People’s Bank of China, banking regulators, and financial institutions should put the implementation of environmental policies and regulations at the top of their agenda, strengthen collaboration and linkages between environmental and financial regulatory authorities, in order to promote credit safety through environmental supervision, in order to support environmental protection through strict credit management,  increase the economic constraints on and supervision of enterprise environmental violations, and change the current high cost of environmental compliance and low cost of flouting environmental regulations for businesses. All levels of the banking regulatory commission shall urge commercial banks to consider whether companies abide by environmental regulations as part of the credit review, and practice strict scrutiny and management; have commercial banks implement environmental policies and regulations and cooperate with environmental protection bureaus in enforcement and control the credit risk of polluting enterprises, bringing this into the scope of supervision and inspection; carrying out investigations and determining the underlying factors of bad loans resulting from corporate environmental problems.”

In this document, there are also a series of regulations on commercial bank credit controls on polluting enterprises. Financial regulatory authorities also bear responsibility for supervising commercial banks. In accordance with our understanding of this policy, given the close relationship between the financial support provided by banks and industries engaged in pollution, financial regulators and the Environmental Protection departments can and should play their distinct roles. The information disclosure request we made with the Yunnan Province Banking Supervisory Commission was regarding whether “financial regulatory authorities” acted in accordance with the “green credit” policy to carry out its “financial supervision duties,” “to support environmental protection through strict credit management.” Clearly, the department with primary responsibility for this information should be the financial regulatory authority—the Yunnan Province Banking Regulatory Bureau; however, they put the ball in the Environmental Protection bureau’s court.

Strategy 3: Technical Difficulties

In 2009, the Ministry of Environmental Protection and the People’s Bank of China jointly issued the Notice on Further Improvement of Information Sharing for the Full Implementation of the Green Credit Policy (hereafter referred to as “green credit information sharing” provisions), clearly stipulating the responsibilities of sharing information on environmental pollution by the Environmental Protection bureau and the financial regulator. Prior to this, the People’s Bank of China and the State Environmental Protection Administration (SEPA) [now the Ministry of Environmental Protection (MEP] already had similar regulations in place: Notice on Information Sharing about Corporate Environmental Issues (2006) and Notice on Regulating the People’s Bank of China’s Credit System and Providing Information about Corporate Environmental Violations (2008). The above documents all request Environmental Protection departments to provide information on corporate environmental violations to the People’s Bank of China’s information collection system.

However, judging from the replies made by the Yunnan Provincial Environmental Protection Bureau and the People’s Bank of China Kunming branch, this sharing is far from being implemented in practice. Although the reason given by the environmental protection authorities was “limited network technology,” a number of years have passed since the aforementioned documents were first introduced.  How can establishing a network be so difficult? Moreover, with such a major environmental incident like the Qujing chromium pollution that has been a cause for alarm for central authorities, information sharing should be handled as a special case in this particular instance. Yet government departments still use “undeveloped network technology” as an excuse to kick the ball into someone else’s court, which is truly regrettable.

In addition, the above three documents require the Environmental Protection department to provide information on corporate environmental violations to the People’s Bank of China; however, no mention is made of whether the People’s Bank of China should disclose information about the loans of polluting enterprises. It is very difficult for this kind of one-way transmission of information to bring about effective cooperation between Environmental Protection departments and financial institutions in implementing green financial policies.

The river has turned black and toxic from chromium residue. Cancer has ended the sounds of laughter of one family after another. The Nanpan River pollution incident has drawn everyone’s attention. Regrettably, under the pretext of “commercial secrets,” “passing the buck,” and “limited network technology,” citizens still do not possess the right to know more about the chromium pollution incident. When the environment and public safety have been compromised, will the government consider the public, long-term interests of society, and respond to public events and reasonable demands from civil society?  This is the real test of a ruler’s heart and wisdom.

信息公开诉求为何被拒之门外
于晓刚 陈渝
中国发展简报NO.52
民间组织申请“曲靖铬污染”信息公开的艰难之路
云南曲靖陆良兴隆村,一个地图上常常忘记了标注的村庄,被一篇新闻报道揭开了珠江源头南盘江边隐藏了十多年的秘密:数十万吨剧毒铬渣和一个上千户的“癌症村”。有报道称,污染事件肇事者云南省陆良化工实业有限公司(以下简称“陆良化工”)还在做着上市的准备,背后有很强的银行支持。
近年来环境事故频发,中国政府出台了绿色信贷政策及一系列措施,要求银行控制因环境问题造成的信贷风险。多数银行也制定了落实绿色信贷政策的措施和方法,拒绝或减少对污染企业和项目的贷款。
为了解铬污染事件背后的利益链条及云南省相关部门落实中央绿色信贷政策的情况,云南省大众流域管理研究及推广中心(以下简称“绿色流域”)与全国其他数十家民间组织与银行及监管机构进行对话,依法申请信息公开。
一方面,污染事件曝光之后,绿色流域于2011年8月29日携手23家国内NGO联名向16家中资上市银行发出《民间环保组织就陆良化工铬污染事件致16家 中资上市银行的公开信》,希望了解各银行及分支机构是否与陆良化工及其两家关联企业有信贷业务关系,但截至本文发稿时止,只有兴业银行和上海浦东发展银行进行了回复,声明其与上述三家企业并无信贷业务联系。
另一方面,向政府金融监管部门及环保部门申请信息公开。按照《政府信息公开条例》、《关于落实环保政策法规防范信贷风险的意见》(以下简称“绿色信贷政策”)和云南省相关政府职能部门的内部规定,绿色流域于2011年九十月分别向中国人民银行昆明中心支行、云南省银监局和云南省环保厅提出“政务依申请公开”申请,要求公开为陆良化工提供资金的金融机构信息及监管部门针对这一污染事件的应对措施,后收到上述三部门的书面复函。
在整个申请的过程中,一方面,我们对三家政府部门的积极回应感到高兴,另一方面,回应的内容让我们沮丧。三家政府部门采取不同的策略,拒绝了公民行使知情权的要求。
策略一:以“商业秘密”为挡箭牌
中国人民银行昆明中心支行以涉及商业秘密为由拒绝公开为陆良化工提供贷款的银行信息及贷款情况。其依据的《银行信贷登记咨询管理办法(试行)》中有这样的条款:“第22条 金融机构通过银行信贷登记咨询系统查询获取的借款人资信情况,不得向第三方透露。”“第23条 ……中国人民银行不得任意对外披露金融机构和借款人的有关信息。”
在政务信息依申请公开艰难起步的过程中,“商业秘密”常常成为拒绝公开的主要借口。但实际上,“商业秘密”无论是在学术上还是司法实践中都是争议重重的,而就是这种模糊和难定义,让这个术语成了政府某些部门不公开信息时频繁引用的“安全”词汇。
实际上,我们在中国人民银行昆明中心支行网站上查找到的《中国人民银行昆明中心支行政务依申请公开制度(试行)》中就有这样的规定:“第20条 下 列政务事项或信息,昆明中心支行不予公开:(一)涉及国家秘密、商业秘密、个人隐私的政务事项或信息。但经权利人同意或者昆明中心支行认为不公开可能对公共利益造成重大影响的涉及商业秘密、个人隐私的政务事项或信息,可以予以公开。”可见,即使“为污染企业提供融资服务的银行信息”属于“商业秘密”,在出 现对环境安全和公众利益已经造成巨大损害并可能造成更大威胁的公共环境突发事件(如曲靖铬污染)时,受“商业秘密”保护的商业利益也应该让位于公共利益。该政府部门的选择,反映了其在公众利益和商业利益之间孰轻孰重的权衡。
策略二:“踢皮球
云南省银监局认为,曲靖铬污染属环境污染重大突发事件,该事件处理的相关信息与其没有主要关系,因此应向环保部门申请相关信息。
曲靖铬污染虽然属于“环境污染”事件,但我们要求公开的信息内容是“云南省银监局与曲靖铬污染事件有关的处理和应对措施内容及执行情况”。国家环境保护总局、中国人民银行与中国银行业监督管理委员会2007年 联合发文的“绿色信贷政策”明文规定:“各级环保部门、人民银行、银监部门、金融机构要把落实环保政策法规摆上重要议事日程,加强环保和金融监管部门合作与联动,以强化环境监管促进信贷安全,以严格信贷管理支持环境保护,加强对企业环境违法行为的经济制约和监督,改变‘企业环境守法成本高、违法成本低’的 状况。各级银行监管部门要督促商业银行将企业环保守法情况作为授信审查条件,严格审批、严格管理;将商业银行落实环保政策法规、配合环保部门执法、控制污染企业信贷风险的有关情况,纳入监督检查范围;要对因企业环境问题造成不良贷款等情况开展调查摸底。”
该文件中还有一系列有关商业银行对污染企业进行信贷 控制的规定,而金融监管部门对商业银行的履责情况负有监督的职责。按照我们对这一政策的理解,鉴于银行金融支持与企业污染行为之间的紧密联系,金融监管部门和环境保护部门都能够而且应当发挥各自不同的职能作用。我们向云南省银监会提出的信息公开申请内容是“金融监管部门”是否根据“绿色信贷”政策履行了其 “金融监管职责”,“以严格信贷管理支持环境保护”,显然,与这一信息有主要关系的部门应当是“金融监管部门”云南省银监局,而该部门把“球”踢到了环保部门门前。
策略三:技术问题
环保部和中国人民银行2009年联合发布的《关于全面落实绿色信贷政策  进一步完善信息共享工作的通知》(以下简称“绿色信贷信息共享规定”)中明确规定了环境污染信息在环保部门和金融监管部门之间的共享。在此之前,人民银行和环保总局《关于共享企业环保信息有关问题的通知》(2006)和环保总局《关于规范向中国人民银行征信系统提供企业环境违法信息工作的通知》(2008)已经有了类似的规定。上述文件都要求环保部门应当以及如何向人民银行征信系统提供企业环境违法信息。
然而,从云南省环保厅和人民银行昆明中心支行对我们做出的复函来看,这种共享在实践中远没有落实。环保部门给出的理由是“网络技术限制”,但距上述文件出台已时隔数年,为何网络建设如此艰难?而且,在处理曲靖铬污染这样惊动中央的重大环境污染事件中,信息共享也应特事特办,政府职能部门仍以网络技术不成熟为 借口,把踢过来的球再踢回去,实在令人遗憾。
另外,上述三个文件要求环保部门向人民银行提供企业环境违法信息,而没有提到人民银行是否应向环保部门共享污染企业的信贷信息。这种单向的信息传递,很难使环保部门和金融机构形成有效的合作,落实绿色金融政策。
铬渣把江水染黑变毒,癌症带走一个又一个家庭的笑声,南盘江污染事件成了全社会的关注焦点。遗憾的是,在“商业秘密”、“政府职能范围”、“信息网络技术限 制”筑起的保护网下,公民对铬渣污染事件更深的根源仍然没有知情的权利。在环境和公众安全这样的重大利益已经受到破坏的时候,政府是否以全社会的公共利益和长远利益为出发点和立足点来应对公共事件和公民社会的合理诉求,这拷问着执政者的胸怀和智慧。
(作者分别为云南绿色流域主任和项目官员。)

Yu Xiaogang is the founder and director of the Yunnan-based NGO, Green Watershed and winner of the 2006 Goldman Environmental Prize. Chen Yu is Project officer at Green Watershed.

Translated by Katie Xiao

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