Analysis on the Key Points of Government Information Disclosure Review
Published:
2018-03-19
Since the implementation of the Regulations on Disclosure of Government Information on May 1, 2018, government information in the field of land and resources management, especially government information disclosure in land acquisition, has received increasing attention, and applications for information disclosure have become increasingly diversified and complicated. Now combined with the case, a simple analysis is as follows.
1. brief
Applicant: Wang Mou
Respondent: Municipal Bureau of Land and Resources
The applicant refuses to accept the respondent's reply to the land acquisition approval document and the agricultural land conversion plan, supplementary farmland plan, land acquisition plan, and land supply plan (referred to as the "one book and four parties case"), and submits to a city reconsideration authority Administrative reconsideration.
This case involves the issue of land acquisition information disclosure: On November 7, 2017, the applicant submitted an application for government information disclosure to the respondent on the following matters: 1. Request to disclose the government expropriation approval documents of a certain province, a certain city and a certain county; 2. The land acquisition The approved "One Book, Four Parties Case". On November 15, 2017, in accordance with the provisions of Articles 9, 11, and 17 of the Regulations on Disclosure of Government Information, the respondent believed that the applicant should disclose it to the county-level land and resources bureau where it is located. The applicant refused to accept the administrative reconsideration and requested to cancel the "Government Information Disclosure Notice" of a certain city's Land and Resources Bureau and requested to perform legal duties. After hearing, the reconsideration organ of a city held that according to the provisions of articles 21 and 17 of the regulations on the disclosure of government information, the administrative organ producing the government information shall be responsible for the disclosure of the government information. The Municipal Bureau of land and resources has performed its legal duties and informed it in writing, and maintained the reply to the notice of disclosure of government information.
Comments on 2. Lawyers
The main focus of the dispute in this case is: the subject of information disclosure and the way of disclosure in the "one book, four parties case".
According to Article 2 of the regulations on the disclosure of government information, "the term" government information "refers to the information produced or obtained by administrative organs in the process of performing their duties and recorded and preserved in a certain form" and Article 17 "the administrative organ that produces the government information shall be responsible for the disclosure of the government information produced by the administrative organ; the government information obtained by the administrative organ from citizens, legal persons or other organizations, the administrative body that keeps the government information is responsible for disclosing..." It can be seen that the law has clearly stipulated two different types of government information disclosure subjects: government information "produced" by administrative organs shall be disclosed by "the administrative organ that produces the government information"; Government information obtained by administrative organs from "citizens, legal persons or other organizations" (Note: The scope is limited to administrative counterparts and does not include administrative organs), the administrative organ that keeps the government information is responsible for disclosure ".
Although the Municipal Bureau of land and resources has mastered the information that the applicant wants to apply for disclosure according to law, the government information does not belong to the "government information obtained by the preservation organ from citizens, legal persons or other organizations", but is the government information "produced" by other administrative organs. Therefore, according to Article 17 of the Regulations on Disclosure of Government Information, the subject of disclosure of the government information is the agency that produced the government information, that is, the agency that produced the four-party case and submitted for approval is the county land and resources bureau, and the provincial land The land acquisition approval made by the Resources Department should be made public by the Provincial Land and Resources Department.
So, does a city's land and resources bureau, as a depositary department, have an obligation to make public? In practice, because the production authority may make changes and adjustments to the quadripartite case submitted for approval according to the management and requirements of the depositary authority, the depositary authority may not keep the final version, and there may be inconsistencies between the production authority and the depositary authority. If it is made public by the depositary authority, it is easy to cause misunderstanding of the applicant and cause unnecessary disputes, and it also requires the depositary authority to spend time and energy to judge whether the document is the final draft, which is also out of the original intention of government information disclosure. Therefore, we generally believe that it is the best way to let the production authority make public the principle and let the depository inform the applicant of the correct way to apply for information disclosure.
Analysis of 3. Points
Based on years of experience and legal practice in providing legal services to administrative agencies, our lawyers have summed up the "five-step review method" to effectively deal with the information disclosure business encountered in the work, for reference:
Step 1: Examine whether the information requested by the applicant is government information.
If not, a written reply shall be given within 15 working days from the day after receiving the application form for government information disclosure, informing the applicant that the content of the application does not belong to government information and will not be disclosed.
Step 2: Examine whether the information applied by the applicant is produced or saved by the administrative organ.
If not, a written reply shall be given within 15 working days from the day after receiving the application form for government information disclosure, informing the applicant that it is not disclosed by the administrative organ or the government information does not exist, and the name and contact information of the administrative organ shall be informed to the applicant if the government information disclosure organ can be determined.
Step 3: Review whether the information content applied by the applicant is clear and specific.
If not, a written reply shall be given within 15 working days from the day after receiving the application form for government information disclosure, requiring the applicant to make up for it. After modification, supplement, still can not make the government information specific, inform the applicant not to provide.
What needs special attention here is that the law does not clearly stipulate the time limit for correction, and it is generally controlled in accordance with 15 working days.
Step 4: Review whether the content of the applicant's application conforms to the principle of "one thing, one application.
Article 3 of the opinions of the general office of the State Council on doing a good job in the disclosure of government information according to application establishes the basic principle of the application for the disclosure of government information, that is, one application for each case. If the applicant submits a "Government Information Disclosure Application Form" that involves a lot of information content, and the information may be distributed in different offices or departments, you can only give a written reply to one or one type of information in accordance with this regulation. For other information content, inform them to apply in writing in accordance with the principle of "one application for one thing.
Step 5: Examine whether the information applied by the applicant involves state secrets, trade secrets, and personal privacy.
Government information is based on the principle of openness, with the exception of non-disclosure. According to Article 8 of the regulations on the disclosure of government information, "administrative organs shall not endanger national security, public security, economic security and social stability", and Article 14 of the opinions of the general office of the State Council on the implementation of the regulations on the disclosure of government information in the People's Republic of China, If the disclosure of government information applied by the applicant may endanger national security, public security, economic security and social stability, it shall not be provided according to regulations, the applicant can be informed that it does not fall within the scope of government information disclosure ", and the administrative agency may not provide it if it may be a state secret.
In addition, according to the fourth paragraph of Article 14 of the regulations on the disclosure of government information, state secrets belong to information that is absolutely not disclosed; while government information involving commercial secrets and personal privacy is relatively not disclosed. If the obligee agrees to disclose it, or if the administrative organ thinks that non disclosure may have a significant impact on the public interest, it should still be disclosed.
Through this brief analysis, I hope to give some help to government departments or lawyers in dealing with similar business or cases, and do their best to criticize and correct them.
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