Research On The Judicial Application Of The Non Public Clauses In The Regulations Of The Government Information Disclosure

"Based on the principle of open,not open to exception" is the government information disclosure legislation to the basic principles of recognition,and the premise of the implementation of this principle is to determine the scope of the disclosure of government information and not open to the public,in view of public information,from the positive aspects to define will miss out too,all countries taken from the negative aspects of legislation,the provisions of clause is actually not open,not open to delineate the scope of the way to promote the publicity of government information.Our country adopts the same way of legislation,"article eighth of the regulations on open government information"(this is called "three security stability" clause)and fourteenth(in the paper called "secret clause")stipulated the legal situation is not open,but the provisions of the principle,so the implementation of easy to cause problems.Based on the analysis of 101 cases,this paper attempts to sum up the situation of the court's application of the non disclosure clause,summarizes the judges' application of the non disclosure provisions,helps the public understand the laws better,and points out the direction for the administrative organs to enforce the law.We summarized the case that in the application of "three security stability" in the case of administrative organs need to provide evidence to prove that public information will endanger social stability and relevant normative documents can be used as the basis without discretion;in cases involving state secrets,the court only review classification according to whether not legitimate,dense program review,also does not review the secret files of commercial secrets;the court judgment is based on the "anti unfair competition law,and that the administrative organ prior to the third people for advice must be examined,or procedural defects.In the case of relatively undisclosed business secrets and personal privacy,the judge should measure the interests in the case,and there is no unified standard.According to the case concluded that the law,the administrative organ for public provision and put forward the following suggestions: administrative organs in cognizance of information disclosure may endanger "three safety stability" should seek normative documents as the basis for the possibility of judicial authority approved higher.When information is classified as a state secret,it should be identified according to the way approved by the regulations,which means that the administrative organ is very familiar with theconfidentiality system stipulated in the "secret law" and its enforcement measures.For information that may involve third party interests,we should strictly follow the procedure of first examining and questioning the third party's opinions,which is of great significance for protecting applicants' right to know.In addition,in the application of "secret" clause of the fourth paragraph of the proviso,should pay attention to the applicable conditions of strict control,the application of the proviso clause only for specific circumstances,administrative organs can not be arbitrarily applied.