First, pay attention to distinguish information disclosure from letters and visits and business consultation.
With the increasing number of applications for information disclosure, in practice, some applicants confuse information disclosure with other businesses. The most common thing is that the applicant makes a complaint or business consultation in the name of information disclosure. Therefore, after receiving the applicant's application, the administrative organ should first screen, judge and exclude the application that does not belong to information disclosure. In fact, information disclosure is obviously different from letters and visits and business consultation in terms of ideas, handling methods and relief channels. Information disclosure means that an applicant applies to an administrative organ for disclosure of information produced or obtained by the organ in the course of performing its duties. This information is the existing information that has been generated, and the administrative organ does not need to re-process it. The form of disclosure is to provide a copy or other appropriate forms. If the information disclosure of an administrative organ infringes upon its legitimate rights and interests, the applicant may apply for administrative reconsideration or bring an administrative lawsuit according to law. Letters and visits refer to the activities that citizens, legal persons or other organizations use letters, e-mails, faxes, telephone calls, visits and other forms to reflect the situation to governments or departments at all levels, and put forward suggestions, opinions or complaints, which are handled by the relevant administrative organs according to law. The administrative organ shall investigate and verify the petitions and give written feedback to the petitioners. If the complainant refuses to accept the handling of the complaint reporting matters, he may apply to the higher authorities for review until the review, but he cannot apply for administrative reconsideration or bring an administrative lawsuit. Business consultation means that citizens, legal persons or other organizations understand and consult business problems from administrative organs, and ask for business countermeasures and suggestions. The administrative organ's reply to the business consultation question belongs to the administrative guidance behavior, which is not binding on the parties and has no direct legal effect. The parties cannot apply for administrative reconsideration or bring an administrative lawsuit.
Two, pay attention to the examination of the subject and content of the application in accordance with the application.
The first is to apply for subject qualification. According to the regulations, applicants apply for government information "according to the special needs of production, life and scientific research". The Opinions of the General Office of the State Council on Several Issues Concerning the Implementation of the Regulations on the Openness of Government Information in People's Republic of China (PRC) clearly states that "the administrative organ may refuse to provide the applicant with government information irrelevant to its special needs such as production, life and scientific research". The Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases of Government Information Disclosure stipulates that "if the defendant refuses to provide government information on the grounds that the government information has nothing to do with the applicant's own special needs such as production, life and scientific research, the people's court may ask the plaintiff to explain the special needs"; "If it cannot be reasonably stated that the application for obtaining government information is based on the special needs of its own production, life and scientific research, and the defendant refuses to provide it accordingly, and has fulfilled the statutory obligation of informing or explaining the reasons, the people's court shall reject the plaintiff's claim." The above provisions provide a basis for the administrative organ to examine whether the application for information disclosure belongs to the "special needs" of the applicant. However, because the "Regulations" do not require the applicant to submit the "special needs" certification materials, it is easy to cause controversy in practice about the extent to which the applicant should provide the "special needs" certification materials. Judging from the judicial interpretation in the Supreme People's Court, the administrative organ should be relatively lenient when examining whether the applicant's application involves "special needs". As long as the applicant gives a reasonable explanation, the administrative organ should accept it. At the same time, if the administrative organ refuses to provide information because the application has nothing to do with "special needs", it shall have sufficient factual reasons and shall fulfill the obligation of informing and explaining.
The second is the content of the application. The contents of the applicant's application shall conform to the definition of government information in the Regulations. In addition to the situation that obviously does not belong to the application for information disclosure, there are several situations worthy of attention:
1. If the applicant's application information has been handed over to the national archives at all levels, the administrative organ shall inform the applicant to implement it in accordance with the laws, administrative regulations and relevant state regulations on archives management. After accepting the application, it is still kept by the archives department or staff of this institution or handed over to the national archives, and the provisions of the Regulations shall apply.
2. Where a party or interested party in an administrative procedure such as administrative punishment or administrative reconsideration applies for access to the files in the name of information disclosure, it shall inform it to handle it in accordance with relevant laws and regulations. However, if the relevant personnel who have completed the administrative procedure case apply for access to the file, it shall be handled in accordance with the above-mentioned principle of 1.
3. It is not allowed to apply for public publications or to produce, collect, summarize, analyze or process information in the name of information disclosure. The "collection" here is "search and reorganization, arrangement and production". The process of merely searching and querying to determine whether information exists should not be understood as a "collection" process.
Three, pay attention to grasp the legal scope of government information disclosure.
According to the Regulations, government information involving state secrets, commercial secrets or personal privacy is an exception to information disclosure. The following points should be noted in practice:
1. Matters marked with classification or duration of confidentiality are state secrets and shall not be made public. China's Secrecy Law clearly stipulates the scope and classification of state secrets. All matters that have been determined in accordance with the statutory authority and procedures are state secrets. The public application for this matter will not be made public.
2. The government information that is not classified in advance shall be examined by the administrative organ in strict accordance with the relevant provisions of the Secrecy Law and its implementation measures before it is made public. If, after examination, it is considered that the information disclosed involves state secrets or may endanger national security, public safety, economic security and social stability, the basis and reasons for determining that it involves state secrets or endangers national security, public safety, economic security and social stability shall be indicated in the conclusion of confidentiality examination, and it shall not be disclosed. If it is impossible to determine whether it can be made public after the confidentiality review of this organ, it shall be reported to the relevant competent department or the secrecy department at the same level for determination in accordance with laws, regulations and relevant provisions of the state. The administrative organ shall not disclose information that the competent department or the secrecy department at the same level thinks cannot be disclosed. However, it should be noted that if the applicant refuses to accept the above-mentioned behavior of not disclosing government information after examination, he should still take the administrative organ that signed the legally effective document as the defendant.
3. Government information involving trade secrets or personal privacy shall generally not be made public unless the obligee agrees to make it public or the administrative organ thinks that non-disclosure may have a significant impact on public interests.
On the determination of business secrets. The Anti-Unfair Competition Law clearly defines trade secrets. According to the law, trade secrets refer to "technical information and business information that are not known to the public, can bring economic benefits to the obligee, are practical, and are kept confidential by the obligee." According to the law and the Supreme People's Court's judicial interpretation, when judging whether the information involves commercial secrets, the administrative organ should comprehensively consider whether the information is "not widely known and easy to obtain by relevant personnel in its field", whether it has realistic or potential commercial value, whether it can bring competitive advantage to the obligee, and whether the obligee has taken "reasonable protection measures appropriate to its commercial value and other specific circumstances" to prevent information leakage. Information that does not meet the above conditions shall not be regarded as trade secrets.
Identification of personal privacy. There is no law to clarify the connotation and extension of personal privacy in China, and the identification of personal privacy in practice is easy to cause controversy. Conceptually speaking, privacy generally refers to private life and private information that is only related to the interests or person of a specific person and that the obligee does not want to be known by others, including personal identity, property, communication, reputation and other information. For similar applications involving specific personal information mentioned above, personal privacy will generally be considered.
In practice, because different subjects have different understandings of business secrets or personal privacy, the administrative organ may conduct a preliminary examination after receiving the application for information disclosure. For information that may involve trade secrets or personal privacy, the opinions of the obligee shall be sought in writing, and the obligee shall explain and prove whether the information involves trade secrets or personal privacy. And whether the information is open or not, the administrative organ has the final right to audit. Where commercial secrets, personal privacy and government information are disclosed on the grounds of public interest, the administrative organ shall determine that the information involves public interest, refuse to disclose the facts and reasons that may have a significant impact on public interest, and inform the obligee in writing of the contents and reasons for the disclosure of information. If the applicant refuses to provide government information on the grounds that it involves business secrets or personal privacy, the administrative organ shall fulfill the obligation of informing the applicant and explain the reasons.