On Legal Institution Of China’s Government Information Publicity Exceptions

The exceptions of the government information publicity involve information security. How to define and distinguish this type of the information not only affects the citizens’ rights to learn the truth, but also concerns the construction of national democratic politics and of the sunshine government. After Freedom of In formation Regulation had been published, the construction of the information freedom institution in our country has made certain achievement. However, there exist some problems in the exception provisions of Freedom of Information Regulation. For example, the legislative level is not high; there exist conflicts with the provisions of other relevant laws; the range of the exceptions is too broad; the criteria of the exceptions are over generalization; the administrative discretion is too large; etc. So it makes it difficult to guarantee the strict, fair, standardized investigation to the information content, makes the exceptions be arbitrarily expanded and makes it difficult to guarantee the citizens’ right to learn the truth.The exceptions are the core issue of the government information publicity. The article uses normative analysis, straight to the point that the concept and intention of the exceptions, analyzing its legal basis, the rationality of its existence, and the harmfulness of its generalization. Then the article analyzes and concludes the cases which have extensive influence at home and abroad in practice, and generalizes the problems existing in the exceptions of the government information publicity of our country and its reason at the present stage. Moreover, it uses the method of comparative research to analyze the judicial precedent of western countries, and extracts the essence and the inspiration to the exceptions institutions in our country. Further more, the article puts forward the reference to the further improvement to the exceptions institutions of the government information publicity in our country. On the basis of this, the article clarifies the connotation and the extension of these concepts which concern state secrets, trade secrets, and the privacy in the exception.At last the article advises to strengthen the constraints to administrative discretion.The main innovation points of the article is that on the basis of the putting forward the advises improving the legislative level of freedom of Information Regulation, revising the laws and regulations relevant to the exceptions, it makes the standard of the state secrets, trade secrets, and privacy clear. In the aspect of state secrets the article proposes the point that there is no conflict between Freedom of Information Regulation and Privacy Act. Instead of placing restrictions, Privacy Act should further refine the provisions about the standard of state secrets provided in Freedom of Information Regulation. In the aspect of the standard of privacy, the article proposed the advice that basing on the standard of “personal secret type information”, abolishing the standard of “personal information type information”. In the aspect of the standard of trade secrets, the article proposed the “divisible principle”. But whether the innovative proposals are feasible is needed to be tested by the combination of theory and practice. After all the research to any problems is a process from the theory to the practice, from the outside to the inside, and from deep to shallow.