Legal information

■ On April 15, the newly revised Regulations of the People's Republic of China on Government Information Disclosure (hereinafter referred to as the "New Regulations") were announced and will come into effect on May 15.

What considerations are based on the revision of the regulations? What are the new measures in the new regulations? What reforms have been made to the information disclosure annual report release system? Our reporter interviewed the relevant person in charge of the drafting department of the regulations to explain in detail the four highlights of the new regulations.

The relevant person in charge of the regulation drafting department said that the Government Information Disclosure Regulations (hereinafter referred to as the "current regulations"), which came into effect on May 1, 2008, have played a positive role in promoting the disclosure of government affairs in my country and improving the transparency of government work. In practice, some new problems have also been encountered. For example, some systems are relatively principled, the scope of government information disclosure is not specific enough, the subject of disclosure obligations is not clear enough, and there are different understandings and understandings of what information should be disclosed and how it should be disclosed.

In addition, some applicants have made repeated and large-scale information disclosure applications to administrative agencies for various reasons, which obviously exceeds the reasonable boundary. "An administrative agency has received tens of thousands of applications from the same applicant, and individual applicants have continued to file hundreds of information disclosure lawsuits against an administrative agency. For this kind of obviously inappropriate behavior, the current regulations lack necessary procedural restrictions. The revision of the regulations also responds to this. Legitimate needs must be met, and improper behaviors must be restricted," the person in charge said.

Highlight 1: For the first time, the subject of information disclosure obligations is clarified

The current regulations do not provide a corresponding definition or description of “administrative agencies”, the main subject of government information disclosure obligations. "In past practice, there were differences of opinion on whether internal agencies and agencies without external administrative responsibilities should be the subject of government information disclosure obligations." said the person in charge of the department drafting the regulations. In addition, as a reference and applicable "public enterprises and institutions closely related to the interests of the people", to what extent government information disclosure obligations should be assumed, and how to supervise and restrict them, there were also differences in understanding and operational difficulties in past practice.

The new regulations adjust the scope of applicable subjects, further clarify the meaning of "administrative agencies" as the subject of government information disclosure obligations, and emphasize administrative nature, independence and externality. At the same time, the information disclosure of public enterprises and institutions such as education, medical and health care will be regarded as an administrative supervision matter of the competent department and will be transferred to other relevant laws and regulations and documents of the competent department for adjustment, and no reference will be made to the applicable government information disclosure regulations.

The person in charge emphasized: "Public enterprises and institutions such as education, medical and health care no longer apply the new regulations by reference, which does not mean that their information disclosure responsibilities are weakened. Instead, more powerful and effective institutional arrangements must be made to change the nominal reference application and strengthen information disclosure responsibilities through administrative supervision."

Highlight 2: Expand the scope and depth of proactive disclosure

The new regulations make important adjustments to the proactive disclosure system. On the one hand, the statutory disclosure content is clarified into 15 categories, including the basis for performance of duties, agency introduction, planning information, statistical information, administrative licensing, penalties/compulsions, budgets/final accounts, charging items, government procurement, major projects, three types of major people's livelihood information, recruitment and other statutory information, of which 10 items are common to all administrative agencies, and 5 are common to the first-level government. At the same time, taking full consideration of the continuity of legislation and the actual situation, other voluntary disclosure information listed in the current regulations will continue to be retained.

"Through this adjustment, on the one hand, the common and most important core information of administrative agencies is further highlighted, and the value of the proactive disclosure system is better reflected; on the other hand, the further specificity and commonality of statutory disclosure content, compared with the principle enumeration of current regulations, is more conducive to the actual implementation of proactive disclosure requirements, so that the effectiveness of the proactive disclosure system is better guaranteed." The person in charge said.

Highlight 3: Clarify exemptions from disclosure and strengthen supervision and binding

Under the principle of "taking disclosure as the norm and non-disclosure as the exception", the new regulations establish a number of circumstances that are exempt from disclosure, mainly including the following six categories: information determined to be state secrets according to law and prohibited from disclosure by laws and administrative regulations; information that may endanger national security, public safety, economic security, and social stability after disclosure; information involving commercial secrets Confidentiality, personal privacy and other information whose disclosure would cause damage to the legitimate rights and interests of third parties; internal affairs information in personnel management, logistics management, internal work processes, etc.; process information such as discussion records, process drafts, consultation letters, and request reports formed by administrative agencies in the process of performing administrative management functions; administrative law enforcement case file information.

Through exemption clauses, it is clear under what circumstances the applicant's request can be rejected, and an appropriate balance is achieved between protecting the public's right to know and safeguarding social and public interests. "During the revision process, we selected 25 State Council departments and 12 local administrative agencies, a total of 517 administrative agencies, to conduct a special survey on matters not to be disclosed. We concentrated on analyzing all the decisions of these agencies to refuse disclosure in the past three years, and summarized the actual tolerance of administrative agencies for government information disclosure, which serves as the basic practical basis for determining exempted matters." The relevant person in charge of the drafting department of the regulations said.

"The clarification of the exemption clause seems to be a 'protection' for administrative agencies, but in fact it increases the supervision and binding force on administrative agencies. Only after the items that are not to be disclosed are demarcated, can we truly implement the principle of 'making disclosure the norm and non-disclosure as the exception'." The person in charge said.

In addition to the exemption clause, the new regulations give the government information disclosure authority the right to recommend statutory sanctions for responsible persons. "For some time, some people have had the understanding that 'no big things will happen if you don't disclose things, but big things will happen if you make mistakes.'" The person in charge stressed, "This revision of the regulations will make the disclosure of government information the same hard constraints as legal responsibilities such as confidentiality."

In addition, the new regulations legalize and standardize the handling of government information disclosure, clarifying five types of legal processing decisions: disclosure, non-disclosure, partial disclosure and partial non-disclosure, inability to provide, and no processing. Each type is divided into several specific situations. The person in charge emphasized: “According to the new regulations, administrative agencies are no longer allowed to respond in non-standard and controversial ways such as ‘not within the scope of government information disclosure specified in the regulations’ or ‘not within the scope of adjustment of the regulations’.”

Highlight 4: Reform the annual report release system and raise the release date to January 31 each year

According to the new regulations, the deadline for people's government departments at or above the county level to submit the annual report on government information disclosure for the previous year to the government information disclosure authority at the same level and publish it to the public will be advanced from March 31 to January 31 each year. In addition, regulations were added that the competent departments for government information disclosure of local people's governments at or above the county level should publish to the public the annual government information disclosure report of the government at the same level for the previous year before March 31 of each year.

In practice, it has been found that there are two problems with the current annual report system. On the one hand, administrative agencies issue multiple annual reports on their own, which inevitably leads to problems such as unpunctual release and non-standard content. On the other hand, there are requirements for decentralized release but no centralized release requirements, which is not conducive to an overall understanding of the government information disclosure work of a place or a system.

The new regulations combine decentralized release with centralized release. In addition to releasing it to the public on their own, administrative agencies must also submit annual reports to the government at the same level, which will be compiled and released to the public in a unified manner by the information disclosure authorities at all levels of government. At the same time, the national government information disclosure authorities are authorized to issue annual report format templates to further standardize annual reports.

The new regulations also increase the statutory responsibilities of the government information disclosure authorities, such as supervising the implementation of the proactive disclosure system. The person in charge said that if the government information disclosure authorities fail to perform their statutory duties, they must be held legally responsible and strive to fundamentally solve the problem of "doing something well or not, and doing something well or badly."

In addition, the new regulations cancel the "three needs" restrictions in the current regulations that require disclosure "based on one's own production, life, scientific research and other special needs" in order to apply for disclosure. Cancel the regulations on charging fees for disclosure upon request, and clarify that administrative agencies do not charge fees for providing government information upon request. At the same time, the procedures for disclosure upon application have been improved. The new regulations also strengthen measures to provide convenient services to the public, requiring governments at all levels to improve the level of online government information disclosure services and set up government information review sites in government service venues.