Notice of the General Office of the State Council on forwarding the guidance opinions of the Ministry of Justice on Several Issues Concerning the Trial of Administrative Review Cases for Government Information Disclosure

Notice of the General Office of the State Council on Forwarding the Guiding Opinions of the Ministry of Justice on Certain Issues Concerning the Trial of

Administrative Review Cases for Government Information Disclosure

; State

Council Letter [2021] No. 132:

The People’s Governments of all provinces, autonomous regions, and municipalities directly under the Central Government, ministries and commissions of the State Council, and agencies directly under the State Council:

The Ministry of Justice “Guiding Opinions on Several Issues Concerning the Trial of Administrative Review Cases for Government Information Disclosure” have been approved by the State Council and are now forwarded to you. Please implement them carefully.

The General Office of the State Council,

December 22, 2021

(this document is publicly released)

Guiding Opinions on Several Issues Concerning the Trial of Administrative Review Cases for Government Information Disclosure

Article 1 In order to further standardize the trial of administrative review cases for government information disclosure, this guidance is formulated in accordance with the “Administrative Review Law of the People’s Republic of China”, the “Regulations of the People’s Republic of China on the Implementation of the Administrative Review Law”, the “Regulations of the People’s Republic of China on the Disclosure of Government Information”, and the “Measures for the Management of Information Processing Fees for Government Information Disclosure”, based on the actual work.

Article 2 If a citizen, legal person or other organization believes that the disclosure of government information infringes on his or her legitimate rights and interests, he or she may file an application for administrative review with the administrative review authority in accordance with the law:

(1) Apply to an administrative agency for obtaining government information, and the administrative agency responds that it does not disclose it (including part of it not to be disclosed, the same below), cannot be provided, refused to process it, or fails to deal with it within the time limit;

(2) Believing that the government information provided by the administrative agency does not belong to the content of its application for disclosure;

(3) Believing that the method, means or time of obtaining government information by the administrative agency is wrong;

(4) Believing that the government information disclosed by the administrative agency on its own initiative or on the application violates its trade secrets and personal privacy;

(5) Believing that other government information disclosure behaviors of the administrative agency infringe on its legitimate rights and interests.

Article 3 If a citizen, legal person or other organization refuses to accept the disclosure of government information and submits an application for administrative review, the administrative review authority shall not accept it under any of the following circumstances:

(1) If an application for administrative review is filed solely on procedural processing such as corrections and extensions made by the administrative agency;

(2) If it considers that the government information provided by the administrative agency does not meet its specific requirements for paper, seals and other forms, or if the government information does not provide government information in accordance with its requirements;

(3) If it objects to the decision of the administrative agency to charge fees within the payment period;

(4) Other circumstances that do not meet the conditions for accepting administrative review.

Article 4 If a citizen, legal person or other organization believes that an administrative agency has failed to fulfill its obligation to proactively disclose government information in accordance with the law and submits an application for administrative review, the administrative review agency will not accept it and may inform it to apply to the administrative agency for relevant government information first.

Article 5 Citizens, legal persons or other organizations establish an administrative agency or a dispatched agency established by an administrative agency to perform administrative functions in their own name in accordance with laws and regulations (hereinafter referred to as the dispatched office) If an application for administrative review is filed if it is not satisfied with the act of disclosing government information in accordance with the application, the administrative agency or dispatched office that made the act of disclosing government information shall be the respondent; if an application for administrative review is filed due to failure to disclose government information within the time limit, the administrative agency or dispatched office that received the application for disclosing government information shall be the respondent.

If a citizen, legal person or other organization submits an application for administrative review that the administrative agency’s proactive disclosure of government information violates its legitimate rights and interests, the administrative agency or dispatched office that disclosed the government information shall be the respondent.

If a citizen, legal person or other organization refuses to accept the government information disclosure behavior made by an organization authorized by laws and regulations with the function of managing public affairs and submits an application for administrative review, the organization shall be the respondent.

Article 6 If the applicant believes that the respondent has failed to process its application for government information disclosure within the time limit, the administrative review authority shall focus on reviewing the following matters:

(1) Whether the respondent has the legal responsibility to implement the Regulations of the People’s Republic of China on Government Information Disclosure;

(2) Whether the respondent has received the application for government information disclosure submitted by the applicant;

(3) Whether the method in which the applicant submitted the application for government information disclosure complies with the requirements of the respondent’s Government Information Disclosure Guidelines;

(4) Whether there is a situation where no correction is made within the time limit without justifiable reasons as stipulated in Article 30 of the Regulations of the People’s Republic of China on Government Information Disclosure;

(5) Whether there is a situation where the information processing fee is not paid within the time limit as stipulated in Article 6 of the Measures for the Administration of Information Processing Fees for Government Information Disclosure.

Article 7 If the respondent responds to the disclosure of government information, the administrative review authority shall focus on reviewing the following matters:

(1) whether the respondent informed the applicant of the correct method, method and time to obtain government information;

(2) Whether the respondent provided the applicant to the applicant is complete and accurate.

Article 8 If the respondent replies that government information will not be disclosed, the administrative review authority shall focus on reviewing the following matters: (1) whether the government information applied for disclosure is a state secret determined in accordance with the legal confidentiality procedures;(2) Whether the government information applied for disclosure is government information that is prohibited from disclosure by laws and administrative regulations;(3) Whether the government information applied for disclosure is government information that may endanger national security, public security, economic security, and social stability after disclosure;(4) Whether the government information applied for disclosure is government information involving trade secrets, personal privacy, etc. that may cause damage to the legitimate rights and interests of third parties;(5) Whether the government information applied for disclosure belongs to the respondent’s three types of internal affairs information: personnel management, logistics management, and internal work processes;(6) Whether the government information applied for disclosure belongs to the respondent’s four types of procedural information: discussion records, process drafts, consultation letters, and request reports;(7) Whether the government information applied for disclosure belongs to administrative law enforcement file information;(8) Whether the government information applied for disclosure belongs to the information specified in Item 7 of Article 36 of the Regulations of the People’s Republic of China on the Disclosure of Government Information.

Article 9 If the respondent fails to provide government information in his reply, the administrative review authority shall focus on reviewing the following matters:

(1) whether the respondent does not have the government information applied for disclosure;

(2) whether the government information applied for disclosure requires the respondent to process and analyze the existing government information;

(3) whether the content of the application for disclosure is still unclear after correction.

Article 10 If the respondent replies not to process the application for government information disclosure, the administrative review authority shall focus on reviewing the following matters:

(1) whether the application for government information disclosure submitted by the applicant belongs to a petition, complaint, report and other activities in the form of an application for government information disclosure, or an application for state compensation, administrative review, etc.;

(2) Whether the application for government information disclosure submitted by the applicant is a duplicate application;

(3) Whether the application for government information disclosure submitted by the applicant is a situation that requires the respondent to provide government gazettes, newspapers, books and other public publications;

(4) Whether the application for government information disclosure submitted by the applicant is a situation where the quantity and frequency of applications for disclosure of government information obviously exceed a reasonable range, and the reasons given are unreasonable;

(5) Whether the application for government information disclosure submitted by the applicant is a situation that requires the respondent to confirm or reissue the government information that it has already obtained.

Article 11 If the applicant requests the respondent to correct government information but the respondent fails to correct it, the applicant shall provide the supporting materials that it has filed a correction application with the respondent.

Article 12 Under any of the following circumstances, the administrative review authority shall decide to maintain the disclosure of government information:

(1) If the government information applied for disclosure has been voluntarily disclosed, the respondent informs that the method and means of obtaining the government information are correct;

(2) If the government information applied for disclosure can be disclosed, the respondent provided the government information completely and accurately, or informed that the method, means and time of obtaining the government information were correct;

(3) The government information applied for disclosure shall not be disclosed in compliance with the provisions of Articles 14, 15, 16, and Item 7 of Article 36 of the Regulations of the People’s Republic of China on the Disclosure of Government Information;

(4) If the government information applied for disclosure cannot be provided or the application for disclosure of government information is not processed, it falls under the circumstances stipulated in Articles 9 and 10 of these Guiding Opinions that it cannot be provided or the application for disclosure of government information is not processed;

(5) Other circumstances in which government information disclosure behavior should be maintained in accordance with the law.

In the circumstances listed in the preceding paragraph, if the facts of government information disclosure are clear, the basis for application is correct, and the reply content is appropriate but the procedures are illegal, the administrative review authority shall decide to confirm that the procedures for government information disclosure are illegal.

Article 13 Under any of the following circumstances, the administrative review authority shall decide to reject the application for administrative review:

(1) The applicant believes that the respondent has failed to perform the duties of government information disclosure, and the administrative review authority finds that the respondent has no corresponding legal duties after accepting it or has already performed the duties of government information disclosure before accepting it;

(2) After accepting the application for administrative review, it is found that the application for administrative review falls within one of the circumstances specified in Article 3 of these Guiding Opinions;

(3) The respondent fails to deal with the application for government information disclosure submitted by the applicant. The handling of the application for government information disclosure is in compliance with the provisions of Article 30 of the Regulations of the People’s Republic of China on Government Information Disclosure and Article 6 of the Measures for the Administration of Information Processing Fees for Government Information Disclosure;

(4) Other circumstances in which a decision should be made to reject the application for administrative review in accordance with the law.

Article 14 If the respondent fails to handle the application for government information disclosure within the statutory time limit, the administrative review authority shall decide that the respondent handles the application within a certain time limit.

Article 15 Under any of the following circumstances, the administrative review authority shall decide to change the government information disclosure behavior:

(1) The facts of the government information disclosure behavior are clear, the basis for application is correct, the procedures are legal but the reply content is inappropriate;

(2) The government information disclosure behavior is clear, the reply content is appropriate, and the procedures are legal but there is no basis for correct application.

Article 16 Under any of the following circumstances, the administrative review authority shall decide to revoke or partially revoke the government information disclosure behavior, and may order the respondent to re-process the application for government information disclosure filed by the applicant within a certain period of time, or decide the respondent to disclose the government information applied for disclosure:

(1) The respondent responds to the government information to disclose it, but informs the wrong way, means, and time to obtain the government information, or the government information provided is incomplete or inaccurate;

(2) The respondent does not disclose the government information, cannot provide it, or does not handle the application for government information disclosure, and determines that the facts are unclear, the basis for application is obviously wrong, or the reply content is obviously inappropriate;

(3) Other circumstances in which the government information disclosure behavior should be revoked or partially revoked in accordance with the law.

In the circumstances listed in the preceding paragraph, if the applicant has obtained relevant government information before the applicant submits an application for administrative review or before the administrative review authority makes an administrative review decision, the administrative review authority shall decide to confirm that the government information disclosure act is illegal.

Article 17 If, during the trial of the case, the administrative review authority finds that the respondent has failed to perform the duties of government information disclosure in accordance with the law, or has adverse consequences caused by the irregular government information disclosure work system, it may prepare an administrative review opinion and copy it to the relevant government The competent department for information disclosure work; if the circumstances are serious, it may put forward opinions and suggestions on accountability.

The higher-level administrative review agency shall strengthen the guidance and supervision of the trial of government information disclosure cases by lower-level administrative review agencies.

Article 18 These guidance opinions shall come into effect as of the date of issuance.