People's governments of all provinces, autonomous regions, and municipalities directly under the Central Government, ministries and commissions of the State Council, and agencies directly under the State Council:
The Ministry of Justice's "Guiding Opinions on Several Issues Concerning the Trial of Administrative Review Cases for Government Information Disclosure" have been approved by the State Council and are now forwarded to you. Please implement it carefully.
General Office of the State Council
Guiding Opinions on Several Issues Concerning the Trial of Administrative Review Cases for Government Information Disclosure
Article 1In order to further standardize the trial of administrative review cases for government information disclosure, this guidance is formulated in accordance with the Administrative Review Law of the People's Republic of China, the Implementation Regulations of the Administrative Review Law of the People's Republic of China, the Regulations of the People's Republic of China on the Disclosure of Government Information, and the Measures for the Management of Information Disclosure Information Processing Fees, based on the actual work.
Second Citizens, legal persons or other organizations believe that the disclosure of government information infringes on their legitimate rights and interests and may file an application for administrative review with the administrative review authority in accordance with the law:
(1) When applying to an administrative agency for obtaining government information, the administrative agency will not disclose its reply (including part thereof, the same below), cannot provide it, refuse to process it, or fail to process it within the time limit;
(2) Believing that the government information provided by the administrative agency does not belong to the content for which it applies for disclosure;
(3) Believing that the administrative agency notified the wrong method, method or time for obtaining government information;
(4) Believing that the government information disclosed by the administrative agency on its own initiative or upon application violates its trade secrets and personal privacy;
(5) Believing that other government information disclosure actions by administrative agencies infringe on their legitimate rights and interests.
Third If a citizen, legal person or other organization refuses to accept the disclosure of government information and submits an application for administrative review, the administrative review authority will not accept it:
(1) filing an application for administrative review separately for procedural actions such as corrections and extensions made by an administrative agency;
(2) Believing that the government information provided by the administrative agency does not meet its requirements for specific forms such as paper and seals, or fails to provide government information in accordance with the specific channels required by it;
(3) Objecting to the decision of the administrative agency on charging during the payment period;
(4) Other circumstances that do not meet the conditions for accepting administrative reconsideration.
Article 4If a citizen, legal person or other organization believes that an administrative agency has failed to fulfill its obligation to proactively disclose government information in accordance with the law and submits an application for administrative review, the administrative review agency will not accept it and may inform it to apply to the administrative agency for relevant government information first.
Article 5Citizens, legal persons or other organizations establish an administrative agency or a dispatched agency established by an administrative agency to perform administrative functions in their own name in accordance with laws and regulations (hereinafter referred to as the dispatched office) If an application for administrative review is filed if it is not satisfied with the act of disclosing government information in accordance with the application, the administrative agency or dispatched office that made the act of disclosing government information shall be the respondent; if an application for administrative review is filed due to failure to disclose government information within the time limit, the administrative agency or dispatched office that received the application for disclosing government information shall be the respondent.
If a citizen, legal person or other organization believes that an administrative agency's proactive disclosure of government information violates its legitimate rights and interests and submits an application for administrative review, the administrative agency or dispatched office that disclosed the government information shall be the respondent.
If a citizen, legal person or other organization refuses to accept the government information disclosure behavior made by an organization authorized by laws and regulations with the function of managing public affairs and submits an application for administrative review, the organization shall be the respondent.
Rule 6 If the applicant believes that the respondent has failed to process its application for government information disclosure within the time limit, the administrative review authority shall focus on reviewing the following matters:
(1) Whether the respondent has the legal responsibility to implement the Regulations of the People's Republic of China on Government Information Disclosure;
(2) Whether the respondent has received the application for government information disclosure filed by the applicant;
(3) Whether the method in which the applicant submits the application for government information disclosure meets the requirements of the respondent's Government Information Disclosure Guidelines;
(4) Whether there is a situation in which corrections are not made within the time limit without justifiable reasons as stipulated in Article 30 of the Regulations of the People's Republic of China on the Disclosure of Government Information;
(5) Whether there is a situation where information processing fees are not paid within the time limit as stipulated in Article 6 of the Measures for the Administration of Information Processing Fees for Government Information Disclosure.
Article 7If the respondent responds to the government information and discloses it, the administrative review authority shall focus on reviewing the following matters:
(1) The respondent informs the applicant whether the method, means and time of obtaining government information are correct;
(2) Whether the government information provided by the respondent to the applicant is complete and accurate.
Article 8If the respondent replies that government information is not disclosed, the administrative review authority shall focus on reviewing the following matters:
(1) Whether the government information applied for disclosure is a state secret determined in accordance with legal confidentiality procedures;
(2) Whether the government information applied for disclosure is government information prohibited from disclosure by laws and administrative regulations;
(3) Whether the government information applied for disclosure is government information that may endanger national security, public safety, economic security, and social stability after disclosure;
(4) Whether the government information applied for disclosure is government information involving trade secrets, personal privacy, etc. that may cause damage to the legitimate rights and interests of third parties after disclosure;
(5) Whether the government information applied for disclosure belongs to the three categories of internal affairs information of the respondent's personnel management, logistics management, and internal work processes;
(6) Whether the government information applied for disclosure belongs to the four types of process information: discussion records, process drafts, consultation letters, and request reports formed by the respondent in the process of performing administrative functions;
(7) Whether the government information applied for disclosure belongs to administrative law enforcement file information;
(8) Whether the government information applied for disclosure belongs to the information specified in Item 7 of Article 36 of the Regulations of the People's Republic of China on the Disclosure of Government Information.
Article 9If the respondent's reply to the government information cannot be provided, the administrative review authority shall focus on reviewing the following matters:
(1) Whether it is a situation where the respondent does not have the government information requested for disclosure;
(2) Whether it is a situation where the government information applied for disclosure requires the respondent to process and analyze the existing government information;
(3) Whether it is a situation where the content of the government information disclosure application is still unclear after correction.
Article 10If the respondent replies not to process the application for government information disclosure, the administrative review authority shall focus on reviewing the following matters:
(1) Whether the application for government information disclosure submitted by the applicant belongs to activities such as letters and visits, complaints, reports, etc. in the form of an application for government information disclosure, or an application for state compensation or administrative review;
(2) Whether the application for government information disclosure filed by the applicant is a duplicate application;
(3) Whether the application for government information disclosure filed by the applicant is a situation requiring the respondent to provide government gazettes, newspapers, books and other public publications;
(4) Whether the application for government information disclosure filed by the applicant falls under a situation where the number and frequency of applications for government information disclosure obviously exceed the reasonable range, and the reasons given are unreasonable;
(5) Whether the application for government information disclosure filed by the applicant is a situation requiring the respondent to confirm or re-issue the government information it has obtained.
Article 11 If the applicant requests the respondent to correct government information but the respondent fails to correct it, the applicant shall provide supporting materials that it has filed a correction application with the respondent.
Article 12Under any of the following circumstances, the administrative review authority shall decide to maintain the disclosure of government information:
(1) If the government information applied for disclosure has been voluntarily disclosed, the respondent informs that the method and means of obtaining the government information are correct;
(2) If the government information applied for disclosure can be disclosed, the respondent provided the government information completely and accurately, or informed that the method, means and time of obtaining the government information were correct;
(3) The government information applied for disclosure shall not be disclosed in compliance with the provisions of Articles 14, 15, 16, and Item 7 of Article 36 of the Regulations of the People's Republic of China on the Disclosure of Government Information;
(4) If the government information applied for disclosure cannot be provided or the application for disclosure of government information is not processed, it falls under the circumstances specified in Articles 9 and 10 of this guidance on whether the government information disclosure application cannot be provided or the application for disclosure of government information is not processed;
(5) Other circumstances in which government information disclosure should be maintained in accordance with the law.
In the circumstances listed in the preceding paragraph, if the facts of government information disclosure are clear, the basis for application is correct, and the reply content is appropriate but the procedures are illegal, the administrative review authority shall decide to confirm that the procedures for government information disclosure are illegal.
Article 13Under any of the following circumstances, the administrative review authority shall decide to reject the application for administrative review:
(1) The applicant believes that the respondent has failed to perform its government information disclosure duties, and the administrative review authority finds that the respondent has no corresponding legal duties after accepting the case or has already performed its government information disclosure duties before accepting the case;
(2) After accepting the application for administrative review, it is found that the application for administrative review falls within one of the circumstances specified in Article 3 of these guidance opinions;
(3) The respondent fails to handle the application for government information disclosure submitted by the applicant in compliance with Article 30 of the Regulations of the People's Republic of China on Government Information Disclosure and Article 6 of the Measures for the Administration of Information Processing Fees for Government Information Disclosure;
(4) Other circumstances in which a decision should be made to reject the application for administrative review in accordance with the law.
Article 14If the respondent fails to handle the application for government information disclosure within the statutory time limit, the administrative review authority shall decide that the respondent handles the application within a certain time limit.
Article 15Under any of the following circumstances, the administrative review authority shall decide to change the government information disclosure behavior:
(1) The facts of government information disclosure are clear, the basis for application is correct, the procedures are legal, but the reply content is inappropriate;
(2) The facts of the government information disclosure behavior are clear, the content of the reply is appropriate, and the procedures are legal but do not have the basis for correct application.
Article 16 Under any of the following circumstances, the administrative review authority shall decide to revoke or partially revoke the government information disclosure behavior, and may order the respondent to re-process the application for government information disclosure filed by the applicant within a certain period of time, or decide that the respondent shall disclose the government information requested for disclosure:
(1) The respondent responded to the government information and disclosed it, but informed the wrong method, method and time of obtaining the government information, or the government information provided was incomplete or inaccurate;
(2) The respondent's reply to the government information is not disclosed, cannot be provided, or the application for government information disclosure is not processed, and the facts are determined to be unclear, the basis for application is obviously wrong, or the reply content is obviously inappropriate;
(3) Other circumstances in which the government information disclosure behavior should be revoked or partially revoked according to law.
In the circumstances listed in the preceding paragraph, if the applicant has obtained relevant government information before the applicant submits an application for administrative review or before the administrative review authority makes an administrative review decision, the administrative review authority shall decide to confirm that the government information disclosure act is illegal.
Article 17If, during the trial of the case, the administrative review authority finds that the respondent has failed to perform the government information disclosure duties in accordance with the law, or has adverse consequences caused by the irregular government information disclosure work system, it may prepare an administrative review opinion and copy it to the relevant authorities in charge of government information disclosure; if the circumstances are serious, opinions and suggestions on accountability may be put forward.
The higher-level administrative review agency shall strengthen the guidance and supervision of the trial of government information disclosure cases by lower-level administrative review agencies.
Article 18This guidance will come into effect as of the date of issuance.
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