A Study On The Judicial Review Of The "Absence Of Government Information"

The “absence of government information” litigation is a very important type of government information disclosure litigation,but there are some problems in the judgments of such litigation in practice.The guiding case No.101 clearly states that the court should examine whether the defendant has fulfilled the full and reasonable search obligations,which is helpful to check whether such litigation is acceptable or not.However,it is still not clear how to apply the judgment points in the case,how the burden of proof in the litigation is distributed and how the facts are proved.First of all,this paper will interpret the guiding case No.101 by analyzing its logic to fully understand the theory and rationale behind it.Secondly,the paper will analyze the logic of the verdict before and after the release of the guiding case No.101 and try to figure out how the guiding case influences on the practical judgment.In the meantime,the theoretical issues such as the negative facts,the burden of proof,and the proof standards involved in the judgment of the litigation will be sorted out.Through the discussion of the theory of negative facts,the proof method and ways to reduce the burden of proof of the “absence of government information” is demonstrated.After the discussion of the distribution of the burden of proof and the theory of proof standards,how to distribute the objective burden of proof of “absence of government information” and how to select proof standards are demonstrated.Finally,a solution to “absence of government information” will be proposed and existent problems in verdict can be analyzed through theoretical framework.The main point of views in this paper are as follows: First,as a negative fact,“absence of government information” is generally more difficult to prove than positive facts but it is not necessarily impossible to do it.Second,from several types of proof methods of negative facts,the so-called proof method of “fulfilling the full and reasonable search obligations” is retrospective and not logically rigorous to prove the “absence of government information”.Third,after theoretical argumentation,it is suitable that the government should be responsible for the objective burden of proof of “absence of government information”.Fourth,due to difficulty of the proof of “absence of government information”,the court can alleviate the burden of proof of administrative authorities appropriately according to the actual situation of the case.Fifth,when the lawsuit is over,the court is usually still untrue about the “absence of government information”,and therefore it is necessary to make judgments based on objective burden of proof.