The first level is that information involving state secrets, business secrets and personal privacy is not open. This is an international practice. As far as the integrity and coordination of system design are concerned, the government information disclosure system should be coordinated and synchronized with the legislation of state secret protection, personal privacy protection and business secret protection.
For example, after the 1960s, the United States not only enacted the Freedom of Information Act to regulate the government's information disclosure behavior, but also enacted the Privacy Act and the Trade Secrets Act, making it clear that the government had to unjustly infringe on the privacy rights of individuals and the commercial interests of enterprises when disclosing information.
In addition to the Law on the Disclosure of Information Owned by Japanese Administrative Organs, Japan also has the Law on the Protection of Personal Information Owned by Administrative Organs, which clarifies that when government information is disclosed, the disclosure of personal information is limited to two situations: first, information that will not adversely affect individuals after disclosure, such as obtaining honorary titles and being commended; The other is the information that unfair meetings harm the public interest.
However, the current legislative situation in China is obviously not complete and coordinated:
First, there are plans but the personal information protection law has not yet been formulated;
Second, there is no legislative plan for the Trade Secret Protection Law;
Third, the disclosure of government information is only an administrative regulation, and it has not been promoted to law, which is not equal to the legal rank of other laws and affects its legal effect.
In the practice of China, the above non-disclosure exception also encountered the following implementation difficulties:
The first is the relationship between state secrets and work secrets. Because state secrets are clearly stipulated in the Law on Guarding State Secrets, in local work, it is not clearly stipulated whether the exception of government information disclosure is also applicable to situations that do not belong to state secrets but belong to work secrets. In the process of formulating the "Regulations", it is considered that work secrets should also be classified as non-public scope, but they are worried about being abused in practice. Finally, there is no explanation, so that local governments can refer to state secrets for implementation, and legal risks are inevitable in specific operations.
The second is the definition of trade secrets. Because the definition of trade secret is mainly based on the expression in the anti-unfair competition law: "technical information and business information that are not known to the public, can bring economic benefits to the obligee, are practical and kept confidential by the obligee", which belongs to the scope of economic law adjustment and has gone beyond the scope of administrative law. Many administrative organs think that it is beyond their professional ability, which objectively affects the implementation of this non-disclosure situation.
The third is the definition of personal privacy. Personal privacy is a concept of civil law, which is beyond the scope of administrative law. Administrative organs generally believe that identifying personal privacy is not only beyond their ability, but also has great legal risks.
According to The Road to a Government under the Rule of Law (20 10—20 12 Research Report Collection) compiled by Shanghai Administrative Law Society, a survey in 20 12 years showed that 30.7% of the staff of the government information disclosure agencies interviewed believed that there was no clear definition standard for personal privacy and business secrets, which made it difficult to know who should identify and identify them.
In this regard, the author believes that we can learn from the practices of Japanese and British and American governments in information disclosure, that is, we should not take business secrets and personal privacy as the criteria for non-disclosure, but include all information that may involve business secrets and personal privacy in the scope of non-disclosure.
Japan's Law on the Openness of Information Owned by Administrative Organs lists personal information and group information as non-public information. Professor Zhu Mang pointed out that "personal information" covers a wide range, including all personal information such as personal thoughts, beliefs, identity, status and health status. The information exempted from disclosure in the Freedom of Information Act of the United States includes "personal information, medical information and similar information". The meanings of personal information and medical information are clear, while the meaning of "similar information" is vague.
Before 1982, the interpretation of "similar information" was relatively narrow. In the case of 1982 "the State Council v. Washington Post", the Federal Supreme Court adopted a loose interpretation, holding that all information "applicable to a specific individual" applies to this exception. British laws on information disclosure also include "information related to personal information" in the scope of non-disclosure.
Therefore, the author suggests that when the legislation is revised, the situation that government information is not made public is expressed as:
"Other financial information and commercial information that are trade secrets or may have an improper impact on their market competitiveness; Government information that belongs to personal privacy or may involve personal privacy and the information subject is unwilling to disclose it, so as to avoid the implementation difficulties caused by the need to identify business secrets and personal privacy.
On the second level, it is generally included in the scope of non-disclosure in the world, but there are two situations that China does not rule out: one is the process government information that is being formed and studied; The second is to disclose government information that may affect law enforcement and judicial justice.
The Regulations of Shanghai Municipality on the Openness of Government Information, promulgated and implemented by Shanghai in 2004, listed the above two situations as exemption from disclosure. This is determined on the basis of studying and drawing lessons from international common practices.
For example, Japan's Law on the Openness of Information Owned by Administrative Organs regards "information about consultations, discussions or agreements within or between state organs and local public organizations" as an undisclosed situation, because "disclosure may cause undue damage to frank exchange of opinions and neutrality of decision-making, may cause confusion among the people of the whole country, and may inappropriately give certain people advantages or disadvantages."
Britain's Freedom of Information Act stipulates that there are 25 kinds of information that will not be made public, among which there are three kinds of procedural information: information that damages Britain's internal relations, information related to government policy-making, and information related to correspondence with the king, members of the royal family and their families.
The Freedom of Information Act of the United States stipulates that in a lawsuit in which an administrative organ is a party, no memorandum or letter between organs or within organs may be disclosed to non-administrative parties. This provision contains the content of discussing procedural privileges, and administrative organs can enjoy the privilege of non-disclosure according to law.
In fact, the disclosure of process information is controversial in China's practice, which leads to the most controversial cases. After the implementation of "Regulations", the litigation cases faced are firstly the disputes over such procedural information disclosure, and the first case in China after the implementation of "Regulations" is procedural information disclosure.
Finally, in order to solve the difficulties faced in practice, the General Office of the State Council issued the Opinions of the General Office of the State Council on Doing a Good Job in the Disclosure of Government Information by Application in June 20 10 (Guo Ban Fa [2010] No.5), which clearly stated that the administrative organ "is in the process of discussion, research or review, which is generally similar to the internal personnel and finance of the administrative organ.
In fact, process information does not belong to the category of government information in jurisprudence, but should be considered as government information, but it belongs to the scope of non-disclosure, which is still debatable. The relevant legislative suggestions that the author wants to put forward are,
"When a regulation is amended or upgraded to law, it should generally be classified as two cases of exemption from disclosure internationally: the disclosure of process information and government information that may affect the justice of law enforcement, and it is also classified as the scope of non-disclosure like state secrets, commercial secrets and personal privacy.
The third level belongs to two situations in which government information is not made public, namely "three guarantees and one stability" and "three needs".
Regarding "three security and one stability", Article 8 of the Regulations stipulates: "Administrative organs shall disclose government information and shall not endanger national security, public security, economic security and social stability." This clause has been controversial from the beginning.
One of the controversies is that the discretion of this clause is too large and there is no effective restriction. At that time, Shanghai invited a German parliamentarian who participated in the drafting of the German government information disclosure law for academic exchange. After studying China's regulations, the first problem raised is that Article 8 of the regulations is too scattered to be bound. In this regard, Shanghai has added procedural constraints when formulating implementing government regulations, that is, if the public sector decides not to disclose the situation of "three security and one stability", it should report to the higher administrative department so that the higher administrative department can check and correct mistakes.
The second dispute is whether this clause can be directly enforced. At the beginning of the implementation of the Regulations, many local people's congresses, courts and legal experts thought that this clause could not be directly quoted and implemented; The reason is that it is arranged in the general part. According to the common sense of legislation, the general provisions are generally not directly cited as the basis for law enforcement. If it needs to be implemented, the conditions and prohibited behaviors should be clearly specified in the following specific parts.
Therefore, the State Council made it clear in the relevant interpretation that this article can be directly used as the basis for implementation. From the legislative intent, this article is to solve the phenomenon that the relative person is entangled in the problems left over from history because of the lack of standardization in administrative management or administrative law enforcement in the past. Therefore, this article is essentially another expression of the principle that "law has no retroactivity".