Interpretation of some problems in administrative cases of court information disclosure in Zhejiang Province.

According to the spirit of "the Supreme People's Court's Opinions on Doing a Good Job in Administrative Trial under the Current Situation" and "Answers to Some Specific Questions in the Administrative Trial Chamber of Zhejiang Higher People's Court", combined with the actual administrative trial work in our province, and on the basis of repeated research, the answers to some specific questions in the current trial of administrative cases of government information disclosure are as follows: 1. How to grasp the scope of government information involved in administrative litigation of government information disclosure? A: According to the spirit of Article 2 of the Regulations on the Openness of Government Information (hereinafter referred to as the Regulations), the government information involved in administrative litigation of government information disclosure refers to the information formed by administrative organs with administrative functions in the process of performing administrative duties. The internal discussion records of the administrative organs, the opinions solicited by the administrative organs in the internal decision-making process, and the opinions to be made generally have no direct external practical influence, and do not belong to the category of government information involved in the administrative litigation of government information disclosure. Two, how to grasp the scope of administrative litigation of government information disclosure? A: Under the current legal framework, the right of citizens, legal persons or other organizations to obtain government information is inconsistent with the scope of seeking judicial relief when their legitimate rights and interests are violated. The scope of accepting administrative cases of government information disclosure cannot break through the protection scope of "personal rights and property rights" in the Administrative Procedure Law, so the "legitimate rights and interests" stipulated in the second paragraph of Article 33 of the Regulations should still be limited to the category of "personal rights and property rights". If the public prosecutor believes that the administrative act of government information disclosure has violated his general democratic supervision rights such as "the right to know", he can protect it by reporting in the first paragraph of Article 33 of the Regulations. The "Regulations" mainly adjust whether the administrative organs disclose government information, but do not directly adjust the content of government information. If an applicant requests the disclosure of government information and thinks that the administrative organ will not reply, disclose or refuse to disclose or correct the government information with inaccurate records, which infringes his legitimate rights and interests, he may bring an administrative lawsuit according to law. The voluntary disclosure of government information that does not have a substantial impact on the personal rights and property rights of the parties, and the repeated handling of the same party's repeated application for disclosure by the administrative organ and the failure to reply repeatedly do not belong to the scope of administrative litigation. If an administrative organ considers that the contents of an application for disclosure of government information are unclear and informs the applicant to make changes or supplements, the act of informing the applicant of the changes or supplements does not fall within the scope of administrative litigation. 3. Can all applicants for government information disclosure become plaintiffs in administrative litigation? A: The scope of the applicant and the plaintiff does not overlap, and the scope of the plaintiff is relatively narrow. The regulations stipulate the qualifications of the applicant, that is, Article 13 "In addition to the government information voluntarily disclosed by the administrative organs as stipulated in Articles 9, 10, 11 and 12 of these regulations, citizens, legal persons or other organizations may also apply for relevant government information from the State Council departments, local people's governments at all levels and local people's government departments at or above the county level according to their own special needs in production, life and scientific research (hereinafter referred to as" three needs ")". However, in combination with the provisions of the second paragraph of Article 33 of the Regulations, the plaintiff who can file an administrative lawsuit on the disclosure of government information should be a citizen, legal person or other organization that has a special connection with the pointed government information and believes that the disclosure or private behavior of the administrative organ may infringe upon its legitimate rights and interests. Four, how to determine the defendant in administrative cases of government information disclosure? A: According to Articles 2 and 13 of the Regulations, the State Council departments, local people's governments at all levels and local people's government departments at or above the county level are the administrative organs that accept the applicant's application for government information disclosure. Therefore, under normal circumstances, the organ that accepts the application for government information disclosure or the organ specified in the application is the defendant. According to the provisions of Article 17 of the Regulations, the government information produced by an administrative organ shall be made public by the administrative organ that produced the government information. Therefore, the government information obtained by administrative organs from other administrative organs should generally be reviewed by the production organ and decided whether to make it public. The parties concerned shall apply to the production organ for obtaining it, and bring an administrative lawsuit with the production organ as the defendant. If a party brings an administrative lawsuit against the purchasing agency, the people's court shall handle it in accordance with the provisions of the first paragraph of Article 23 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Implementation of Work (hereinafter referred to as "Several Interpretations"). According to the government information formed by the subject (such as an organ) authorized by laws and regulations to exercise administrative functions and powers in the process of foreign administration, if the applicant brings an administrative lawsuit because it does not meet the conditions for applying for publicity, the authorized subject can be the defendant. Five, how to calculate the time limit for prosecution of administrative cases of government information disclosure? A: The administrative organ that accepted the application for government information disclosure failed to make a reply within the time limit stipulated in Article 24 of the Regulations. If a party brings an administrative lawsuit in this regard, the time limit for prosecution shall be governed by Articles 39 and 41 of Several Interpretations. If the administrative organ that accepts the application for government information disclosure gives a reply within the time limit stipulated in Article 24 of the Regulations, and informs the right of action and the time limit for prosecution, it shall apply the provisions of Article 39 of the Administrative Procedure Law and bring an administrative lawsuit within three months from the date of receiving the reply; If the litigation rights and the time limit for prosecution are not informed, the provisions of Article 41 of several interpretations shall apply. Six, the court in the review of government information disclosure administrative cases meet the conditions for prosecution, what should be the main review? A: General courts should review the following contents in turn: 1. Whether the government information pointed by the prosecution conforms to the government information referred to in Article 1 of this solution; 2. Whether the prosecutor or plaintiff has a special connection with the government information with "three needs", that is, whether it meets the provisions of Article 3 of this solution; 3 whether the defendant is qualified, that is, whether it meets the provisions of Article 4 of this scheme; 4. Whether the time limit for prosecution meets the provisions of Article 5 of this solution; 5. Laws, regulations, judicial interpretations and other contents that need to be reviewed. Seven, how to reasonably distribute the burden of proof in government information disclosure cases? A: The administrative litigation of government information disclosure should still follow the rule that the defendant bears the burden of proof. It is generally believed that in the administrative litigation of government information disclosure, the defendant should bear the burden of proof for the following matters: (1) If the defendant refuses to provide government information to the plaintiff, he should give evidence of the reasons for his refusal and fulfill the legal obligation of informing and explaining the reasons; (2) If the plaintiff accuses the defendant of violating his business secrets and personal privacy by deciding to disclose or having disclosed government information, the defendant shall provide evidence to prove that the government information does not involve the plaintiff's business secrets and personal privacy, or has obtained the plaintiff's written consent, and if the public interest decides to disclose it, it shall provide evidence on the basis of determining the public interest; (3) If the defendant refuses to correct the government information records related to the plaintiff, he shall provide evidence on the grounds that the plaintiff's request for correcting the government information records cannot be established or he has no right to correct it; (4) Other matters that need to bear the burden of proof. The plaintiff shall bear the burden of proof for the following matters: (1) If the defendant fails to reply to the application for government information disclosure, it shall provide the evidential materials it applied for in the administrative procedure, except that it cannot be provided and can make a reasonable explanation because the registration system for accepting the application by the defendant is not perfect; (2) If the defendant refuses to correct the government information records, he shall provide evidence to prove that the relevant government information records are inaccurate; (three) to prove that the application for obtaining relevant government information is based on the special needs of production, life and scientific research; (4) In the administrative compensation lawsuit filed together, prove the factual basis of the loss caused by the sued administrative act. Eight, how should the court hear administrative cases of government information disclosure? A: The adjudication of administrative cases of government information disclosure should be based on the application of the parties concerned and follow the principle of "limited justice". Generally, if the defendant refuses to reply and is told to perform his duties, the defendant shall be ordered to reply within the statutory time limit. As for whether the defendant discloses relevant government information, it should still be examined and decided by the defendant according to law, and the court cannot make a decision instead of the defendant. The court shall explain to the plaintiff that the defendant made a non-public defense, originally informed him of the performance of his duties, asked him to change the claim to cancel the defendant's non-public behavior, and ordered him to do it again, and the court shall make a judgment on this. In a case where the defendant is told to confirm the violation of the law and requests to order the defendant to perform his obligations, a judgment shall generally be made on whether to order the defendant to perform his obligations. The application for confirmation of illegality can be elaborated in the section "We think", but it is not the text of the judgment. Only when the defendant refuses to disclose government information and the plaintiff has sufficient reasons to apply for disclosure, that is, when the judgment time is ripe, the court can directly judge the defendant to disclose it within a time limit. We can find the answers to several specific questions about the administrative cases of court information disclosure in Zhejiang province in the relevant regulations of the relevant institutions of Zhejiang government, and the regulations of local government are very clear on this issue.