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Principle of Separability in Government Information Disclosure

Submit Time:22-04-2014 | Zoom In | Zoom Out

Author:Huang Weiqun | Source:Journal of the Party School of the Central Committee of the CPC (Issue 5, 2013)

Abstract:

  The disclosure of government information does not mean the disclosure of all government information. Sometimes government information involves state secrets, trade secrets, and personal privacy. If this information was to be disclosed, it could threaten national security, public safety, economic security, and social stability. In terms of deciding how to differentiate and process this type of information, the principle of separability of “exceptional information exempt from disclosure” is usually applied.

  I.

  In government information disclosure work, the principle of separability refers to the existence of some government information that should not be disclosed. In accordance with laws and regulations, administrative organs use technical means to remove or conceal such information in order to keep it secret, while disclosing information that may be disclosed. The special provision regarding exemption from disclosure is also known as the principle of differentiation or the principle of separability. According to this principle, after rationally separating or deleting confidential government information, non-confidential government information should be provided to anybody who applies to see it.

  The principle of separability embodies the spirit of legislation regarding the disclosure of government information, which is summed up by the saying, “disclosed in principle, not disclosed as an exception.” While protecting state secrets, trade secrets, and personal privacy, it is necessary to fully protect the right to know and right of access to information of citizens, as well as to standardize the obligations and responsibilities of administrative authorities when it comes to disclosing information so as to limit their discretion. The principle of separability emphasizes that the value of protecting who knows certain information is greater than information secrecy. Its essence is government openness and public oversight. As Lenin stated, “[T]he state is strong when the masses know everything, render their opinions on every issue, and consciously respond to every policy.” On the eve of the implementation of the US Freedom of Information Act, the then Attorney General, Ramsey Clark, wrote, “If government is to be truly of, by, and for the people, the people must know in detail the activities of government.”

  II.

  In Western countries, along with thriving capitalist societies, there are deep historical roots, dating back to 1766, to the principle of separability in government information disclosure. The Freedom of the Press Act formulated in Sweden in 1776 contained implications for the differentiating and processing of information.  Article 8 of Chapter 2 of the Act regarding the openness of official documents stated that partially confidential documents may still be released as long as confidential sections are not revealed. The modern system of government information disclosure, however, was established in 1966, when the Freedom of Information Act was formulated in the US. The following year, its main provisions were incorporated into the United States Code.

  5 U.S.C. § 552(b)(9) states, “Any reasonably separable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection. The amount of information deleted, and the exemption under which the deletion is made, shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by the exemption in this subsection under which the deletion is made. If technically feasible, the amount of the information deleted, and the exemption under which the deletion is made, shall be indicated at the place in the record where such deletion is made.” The United States’ Freedom of Information Act (and Amendments of 1974) was the first document to clarify the principle of separability for the disclosure of government information when it stipulated, “where only a portion of a record is determined to be exempt from disclosure, the record must be disclosed with the exempt portion deleted.”  In 2001, the European Union enacted Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 Regarding Public Access to European Parliament, Council and Commission Documents. Article 4, Section 6 stipulated, “If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released.” The following year, Section 2 of Article 7 of Recommendation Rec(2002)2 of the Committee of Ministers to members states on access to official documents stipulated, “If a limitation applies to some of the information in an official document, the public authority should nevertheless grant access to the remainder of the information it contains. Any omissions should be clearly indicated. “

  In China, the disclosure of government information had a late start, but progress in system design has been enormous. As early as 1995, British authorities in Hong Kong formulated the Code on Access to Information. The last paragraph of Article 1.13 of the Code states, “So far as possible, information will be provided in the form in which it exists. Where disclosure of certain information in a record is to be refused, access will normally be provided to the remaining part of the record.” In 2005, the final paragraph of Article 18 of Chinese Taiwan’s Freedom of Government Information Law stipulated, “Government information containing materials that are restricted from making available to the public or provision, as specified in the above paragraphs, shall make other part of such information available to the public or be provided.” In May 2008, China formally promulgated its Regulation of the People’s Republic of China on the Disclosure of Government Information. Article 22 of the Regulations states, “If the requested government information contains some content that should not be disclosed but that can be handled through differentiation, the administrative agency should provide the requester with that information content that may be disclosed. “ That same year, Opinions of the State Council on Various Issues of Implementing the Regulation of the People’s Republic of China on the Disclosure of Government Information released by the General Office of the State Council further elucidated the differentiation and processing of content involving state secrets. Section 3, Subsection 7 states, “Government information whose major content needs to be extensively known or participated in by the general public, but a part of which involves state secrets, shall be disclosed after undergoing legally prescribed procedures of declassification and deletion of the secret information.” In August 2011, Article 9, Paragraph 3 of Provision for Several Issues Concerning Hearings of Administrative Cases Related to Government Information Disclosure of the Supreme People’s Court stipulated, “Where the people’s court decides, after the hearing, that the government information the defendant does not disclose may be dealt with in a differentiated manner [i.e., some information can be disclosed, other information cannot], the court shall order the defendant to disclose the part of information which can be disclosed within a certain time period.”

  III.

  The severability principle applies to all exceptions to government information, including those concerning state secrets, trade secrets, personal privacy, and other sensitive information. In the course of government information disclosure, it is necessary to differentiate in accordance with law between the classified status of various types of information.

  (1)   State Secrets

  Government information is classified as state secrets in accordance with the Law of the People's Republic of China on Guarding State Secrets and its supporting regulations. It also used to further define the scope of its security classification, confidentiality level, and confidentiality period. It is forbidden to disclose state secrets. However, when the main content needs to be available in the public domain, the non-classified part shall be disclosed after undergoing legally prescribed procedures of declassification and deletion of encrypted content. There are two main situations that arise from differentiation and processing of classified government information: First, the state secret is within its period of confidentiality. State secrets are declassified in advance and their confidentiality level determined by the relevant organ or unit, or they are directly declassified by higher authorities. Declassification must adhere to the principles that disclosure of the item will not harm national interests or that it will be more beneficial to the overall national situation. Second, the period of confidentiality of the state secret has expired. Where the period of confidentiality needs to be extended following a review in accordance with provisions, it shall be re-classified. Information that meets the conditions for being declassified shall be disclosed after undergoing declassification and approval procedures. If the information was not classified by the organ or unit itself, it should consult the organ that produced the document or information and disclose the information after receiving consent and deleting classified content and classified marks.

  (2)   Trade Secrets

  China does not have a dedicated trade secrets law. However, Article 219 of the Criminal Law of the People’s Republic of China, Article 10 Paragraph 3 of the Law of the People's Republic of China for Countering Unfair Competition, Opinions of the Supreme People’s Court on Several Issues Concerning Implementation of the Civil Procedure Law of the People’s Republic of China, Several Provisions on Prohibiting Infringements upon Trade Secrets of the State Administration for Industry and Commerce, and other laws and regulations have all included specific provisions in this area. Trade secrets, which are considered government information, must be differentiated and processed in accordance with the above provisions, and rulings should be made based on whether they should be in the public domain, practicality, and confidentiality. The Regulation of the People’s Republic of China on the Disclosure of Government Information also stipulate whether information should be exempt from disclosure so as to protect the interests of the holder of trade secrets. In the US, when deciding whether or not to disclose trade secrets, administrative organs first consider the public interest. Only if it accords with public interest will private interests be protected. Various legal cases have shown that public interest objectives are a basic social value orientation. Protection of trade secrets and classified commercial information belonging to companies and individuals is always subject to the objective of the public interest. In China, for judicial reviews that may or may not involve trade secrets, the administrative organ must solicit third party comments in writing. If the third party claims it concerns trade secrets, the administrative organ will often refuse to disclose any secretive commercial information.

  (3)   Personal Privacy

  Usually, privacy means that citizens do not want others to be aware of or make known private secrets. It is unique personal information of a natural person that is unrelated to the public interest. A person’s right to privacy is governed by the individual and is the personal right to not share with others information related to private activities and the private domain. The majority of modern countries have passed laws to protect personal privacy. At present, China has no specific personal privacy laws. However, the country’s civil law, criminal law, administrative penalties for public security law, and other relevant laws have some provisions regarding personal privacy. The Regulation of the People’s Republic of China on the Disclosure of Government Information stipulate that, where personal privacy may have a significant impact on the public interest, matters may be disclosed with the consent of the rights holder. If the rights holder refuses to disclose the information, it is usually not disclosed. If there is a real need for disclosure, there should be sufficient reason, and the rights holder must be written to explaining the reason for disclosure. In this respect, the international protective approach is to delete the name, date of birth, and other information that could be used to identify the specific individual.

  (4)   Sensitive Information

  With exemptions to disclosure of government information, there is no basis or standards for what falls into “work secrets,” “process information,” “meeting minutes,” or “historical information.” The decision on whether to disclose this information or not requires further specifications. In the case of “work secrets,” for example, Article 12 of the Civil Servant Law of the People’s Republic of China states that civil servants shall “keep the secrets of the state and secrets relating to their work.” Article 53 stipulates that civil servants must not “leak state secrets or work secrets.” The Public Procurators Law of the People’s Republic of China and the Judges Law of the People’s Republic of China also contain stipulations on confidentiality. Nevertheless, the law still lacks a precise definition of work secrets and there are no relevant judicial interpretations. In practice, the scope of work secrets is generally determined by Party and government organs at various levels. As another example, “process information,” that is the formation process of any type of information, generally has descriptive and evaluative comments. If citizens apply to the government for the information to be disclosed, the administrative organ in charge of disclosure will think that process information is the target information. If there is a wholesale refusal to disclose the information, it will undoubtedly undermine the public’s right to know.

  During the practical operation of government information disclosure, the operating process of the principle of separability largely consists of four steps: The first step is accepting applications. Applicants need to know the content of government information. However, they are unable to obtain the information through active information disclosure channels. As such, the applicants must apply to administrative organs for information disclosure, or if the applicant does not agree with the ruling of the administrative organ, he or she may apply to a higher authority for reconsideration and pursue administrative proceedings through the judiciary. In this case, the accepting organ will accept the applicant’s application. The second step is checking content. Administrative organs will, in accordance with the request of the applicant, check the content in accordance with laws and regulations and decide whether the information the applicant has applied to be disclosed contains “content that should not be disclosed, but that may undergo differentiation and processing.” If it cannot undergo differentiation and processing, the applicant will be notified of the reason for non-disclosure. If it can undergo differentiation and processing, then it will move onto the next step of the process. The third step is differentiation and processing. Administrative organs shall delete, conceal or use other technical means in accordance with law to carry out differentiation and processing of “content that should not be disclosed,” to protect secret information, while also disclosing the content that may be disclosed. If information on decisions of judicial organs can undergo differentiation and processing, the defendant will be ordered to provide the government information that may be disclosed. The fourth step is providing the information. Administrative organs will provide the government information that has undergone differentiation and processing to the applicant and inform the applicant in writing giving the reasons.

  IV.

  To implement the principle of separability for exceptional information exempt from disclosure, the government must grasp the key to success.

  (1)   Continued Protection of Originally Secret Information

  The principle of separability was established on the basis of the principle of confidentiality. Disclosure and confidentiality are fundamental propositions of the system of government information disclosure. As far as the state is concerned, information disclosure improves government transparency and credibility, but improper disclosure can harm national interests and violate government ownership of secret information. The government has a responsibility to safeguard national security, the public interest, and the legitimate rights and interests of individuals, and it has an obligation to check information related to state secrets, trade secrets, and personal privacy. In the event of government disclosure of information, if the file or information to be disclosed is marked as a state secret, the mark is removed and the reasons for declassification are made clear before it is disclosed. In other words, no government information that is disclosed should bear the mark of a state secret. National secret service agencies are responsible for differentiating and processing classified information.

  (2)   Differentiation and processing is the key to information segregation.

  So-called “differentiation and processing” includes being able to differentiate between information and processing using technical means. “Differentiating” refers to making distinctions between pieces of information, and “processing” refers to separating information that can be disclosed from information that cannot be disclosed. After processing, the confidentiality of the original information continues to be protected, and the information that is allowed to be disclosed is disclosed. The following three cases do not apply the principle of separability for exceptional information exempt from disclosure: The first is mixed information. If there is no way to differentiate government information that should not be disclosed, then providing any part of the information would provide the interested party with knowledge of the entire content.[i] The second is incomplete information. If information that has undergone differentiation and processing is incomplete, then the applicant may be unable to make a proper judgement based on the information provided. The third case is that the information has already been disclosed. In this case, following differentiation and processing, although the confidentiality of the original information has been protected, the segregated information has already been made public, or data, text, and other content has no reference value.

  (3)   Administrative Obligations of the Principle of Separability

  For all government information that can be differentiated and processed, as long as it does not reveal state or trade secrets or infringe personal privacy, the content that may be disclosed should be provided by administrative organs to applicants promptly and accurately. Judicial organs may check that administrative organs have fulfilled their obligations of differentiation and processing, and they may also carry out the duties of differentiation and processing at the request of or without request from a complainant. However, the court may only make a principled ruling for the declassification of state secrets and the deletion of classified content. It may not directly carry out differentiation and processing. Following a hearing, if the court believes the principle of separability applies, the administrative acts of the defendant should be quashed and the respondent should be ordered to disclose the information following differentiation and processing. As for how to separate the information, the court can provide legal advice in the judgement.

  (4)   Diversification of Segregation Methods

  If a file references undisclosed information, it can be reprocessed. Administrative organs that provide photocopies of government information should withhold information that is undisclosed and then recopy it. If the applicant applies for disclosure only of the part of the file that may be disclosed, that part may be selected and provided. In the course of differentiation and processing, the following two situations must be avoided: The first is to fail to differentiate. If information that should and should not be disclosed is not differentiated, it may lead to a lawsuit or reverse lawsuit for the disclosure of information. The second is not to differentiate completely. If there is a mix up over government information that should and should not be disclosed, and government information is disclosed due to incomplete differentiation, it may also lead to a lawsuit or reverse lawsuit for the disclosure of information. If incomplete differentiation occurs, the court will rule against the defendant. If incomplete differentiation occurs but it only involves normal government information, then a judgment dismissing the plaintiff's claim is appropriate. If incomplete differentiation of government information involves the main part of the application, the specific administrative acts of the defendant should be revoked.

  (5)   Informing the Applicant of Results and Explaining the Reasons

  When a judgement is made regarding a case, the judge will explain the differentiation and processing of the disputed information and its legal application to the litigant participant and other interested parties. Article 21 of China’s Regulation of the People’s Republic of China on the Disclosure of Government Information stipulates, “If the requested government information does not fall into the scope of disclosure, the requester should be informed that such information cannot be disclosed, together with an explanation of the reasons.” The US Freedom of Information Act states that administrative organs “may delete identifying details….However, in each case the justification for the deletion shall be explained fully in writing… and the extent of such deletion shall be indicated on the portion of the record which is made available or published….If technically feasible, the extent of the deletion shall be indicated at the place in the record where the deletion was made.” The government’s explanation of the reasons for exercising this power must correspond to the specific terms of the Regulation of the People’s Republic of China on the Disclosure of Government Information, and must not be vague. Regardless of whether information is disclosed or disclosure is refused, the applicant must always be informed in writing.

  In summary, implementation of the principle of separability in government information disclosure is based on the premise of the existence of exceptional information. The definition of exceptional information in the disclosure of Chinese government information is vague, and relevant laws and regulations, especially the judicial relief system, is imperfect, which increases the difficulty of operations in practice. Despite this, the principle of separability still helps to protect citizens’ right to information and right to access information, which prevents administrative organs from refusing to disclose government information on the grounds that it is classified in order to prevent public scrutiny. As China’s socialist legal system develops further, the principle of separability in the disclosure of government information will be more strictly applied and standardized, which will promote the development and utilization of government information resources more fully and effectively.


   


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